(concurring in the result) :
While generally I am not in disagreement with my associates regarding the first issue certified to this Court by The Judge Advocate General of the Army, I prefer to make my position clear on the authority of a law officer to question witnesses. Here in a full-scale trial on two serious offenses, only one question of little consequence was asked of a Government witness. In spite of this limited participation, the board of review’s decision and the Chief Judge’s opinion are susceptible of the interpretation that if an answer to a question is not favorable to an accused, the law officer commits prejudicial error because he joins the prosecution. I know of no law or decided case which so circumscribes him or any judge of other Federal courts. He is not a robot who is hemmed in to move only in one direction and if during the trial of a case there are areas of uncertainty which when probed will develop the truth, he is within his ppwers to bring out facts bearing on the issues, regardless of which party may be helped or harmed. Obviously, any question asked by him ought to have some influence on the findings; otherwise it would be objectionable upon the grounds of immateriality. Accordingly, it would follow that if by this holding my associates imply that a law officer may not propose questions to witnesses which seem essential to a full development of the case, regardless of which party is affected, then they truly make a figurehead out of him. Moreover, I reject the principle advanced by the board of review that because his interrogation suggested a theory not otherwise developed by the prosecution he becomes a partisan advocate for the Government. If that were a proper test I suggest he would be bound to remain strictly within limits marked out by the defense and instead of guiding the trial must only follow the dictates of defense counsel.
In United States v Berry, 6 USCMA 638, 20 CMR 354, I cited with approval several Court of Appeals cases dealing with the authority of a judge to interrogate witnesses. All recognize his right to examine witnesses and a reading of them will point up the nature of the conduct of the judge which transcended the bounds of propriety. The trial judge’s conduct portrayed by those authorities shows a partisan advocacy which could not help but impress the *242jury with the belief that the judge was intent upon fixing the guilt of the accused. I find no such injudicious behavior in this record.
The second issue before us arises out of an anticipatory bit of unsound reasoning found in the decision by the board of review, and I deem it desirable to set forth its rationalizations in full:
“If it were not for our disposition of this appeal on the basis of the third assigned error, we would feel constrained to order a rehearing on the sentence. In our opinion the severity of the sentence adjudged can but indicate that the court gave weight only to the rape charge. The approval by the convening authority of a sentence which included only one year less than the maximum authorized for the indecent assault charge after the disapproval of the findings of guilty of the rape charge was, in our opinion, an adjudging of sentence by the convening authority rather than a reassessment of the sentence. Because of the great disparity in the punishment for the two offenses, there simply was no basis for the attempted apportionment by the convening authority. In the interests of fairness and justice to the accused we are of the opinion that any sentence for the indecent assault charge should have been determined free from any consideration of the dismissed rape charge. This could have been done at a rehearing on sentence ordered at the trial level” [Emphasis supplied.]
Obviously those comments show the board was hypothesizing. Nevertheless, because we are reversing the decision of the board and reinstating the findings, and the board may act further under a misinterpretation of the law, it is desirable that our views be expressed in order to avoid unnecessary steps in the appellate processes. And, unlike my associates, I not only believe we should reach the second issue, but ought to face up to it squarely and give an explicit answer in order to provide some obviously needed guidance upon our remand.
Pretermitting the powers of this Court and for present purposes, I am not disposed to disagree with the Chief Judge’s generalization that “when an appellate tribunal sets aside some findings of guilty and affirms others, it has the power, and the discretion, to determine whether to direct a rehearing on the sentence by a court-martial or to reassess the sentence itself.” That, however, completely ignores the issue propounded to us and the emphasized language of the above-quoted paragraph. Although the defense denies that the board of review indicated the convening authority lacked power to reassess accused’s punishment and asserts the board merely directed a rehearing on sentence to further the interests of justice, I just cannot interpret its opinion to so hold. To the contrary, the plain words used by the members of the board of review demonstrate that they felt “constrained” to order a rehearing because the convening authority’s action was “an adjudging . . . rather than a reassessment of the sentence,” and that there “simply was no basis for the attempted apportionment by the convening authority.” In my view, clearer language to convey a conclusion that the convening authority erred as a matter of law would be difficult to compose. And the error of such a holding is easily demonstrated by reference to the decision of the United States Supreme Court in Jackson v Taylor, 35S US 569, 1 L ed 2d 1045, 77 S Ct 1027 (1957). There the Court was faced with an argument almost identical to the language used by this board of review and categorically rejected it.
The short answer to this question is that, while we have held reviewing authorities may order a rehearing on sentence, we have never said flatly that they were powerless to reassess punishment under circumstances of this kind. Moreover, I find no good reason why justice is not well served when the power is exercised. Surely it is better that the board of review determine an appropriate sentence for the offense affirmed rather than to toss the case back and forth to be faced with the same determination at a later date. In suggesting that giving a substantial reduction is adjudging and not reassessing, the board was indulging in an *243unnecessary and unrealistic distinction. And I hasten to point out that such is not necessary, for a board is not without power to protect an accused from what it deems to be too onerous a penalty. Beyond question, a board could— and indeed should — if it feels the sentence to be inappropriate, reassess and reduce it. I suppose a board could, in its discretion and at a proper time, order a rehearing on sentence rather than itself reassessing if the members concluded they could not fairly make a proper determination. But that situation ought seldom to arise. In that connection, it is to be remembered that the court-martial which heard the original case may not be reassembled, the hearing must be on the record, the board of review members are experienced in the sentencing field, usually they have the benefit of much information not available to the court-martial, and unless an accused has been denied the right to present evidence in extenuation and mitigation, they ought to be in a preferred position to make a fair assessment of the quantum of punishment. On a rehearing there would be no change in the findings affirmed by the convening authority, and the board is faced with the same decision. So far as I am able to ascertain, the reason motivating the board to grant a rehearing in this case must find its source in a belief that the court-martial would impose a sentence less onerous than the one affirmed by the convening authority. Conceding that possibility, the board could make certain that situation would not occur, for it can reduce any or all parts of this sentence to a point where no reasonable court would go lower. Why, then, put off until later that which can be done today? But, at best, rehearings Ofi sentence are discretionary actions by a board of review, whereas under the decision certified to this Court the board members indicated that the supposi-tious relief they would accord to accused was required by law. That indication is contrary to the Code and our decided cases, and silence on our part may cause the board to believe that its rationalization bears our imprimatur.
For the foregoing reasons, I would also answer the second certified issue in the negative and remand the case to a board of review for further action not inconsistent with the law.