(concurring in the result) :
I concur in the result.
I agree with my brothers’ conclusion that the issue certified to this. *305Court by'The Judge Advocate General of the Army is hypothetical and need not be answered. United States v Higbie, 12 USCMA 298, 30 CMR 298, this day decided. The question simply inquired:
“WAS THE BOARD OP REVIEW CORRECT IN REASSESSING THE SENTENCE ON THE GROUND THAT THE PRETRIAL ADVICE was inadequate?”
As it is clear that the board also premised its reduction of the adjudged and approved sentence upon “the youth of the accused, his belated realization of the seriousness of his offense and his repentence [sic], his prior good record, and his earnest desire and potentiality for further military service,” it is obvious that the decision reached by the board was at least partially one of appropriateness and, for that reason, may not be overturned. United States v Higbie, supra; United States v Bedgood, 12 USCMA 16, 30 CMR 16.
My brothers, however, have chosen to go beyond the point of decision and add their observations concerning the use of mimeographed forms in constructing a pretrial advice. I, therefore, add my views on the subject and, for slightly different reasons, agree with their ultimate conclusion that the convening authority’s legal advisor would do well to eliminate the use of mimeographed forms and approach each case on the basis of its individual merits.
Uniform Code of Military Justice, Article 34, 10 USC § 834, provides:
“(a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his staff judge advocate or legal officer for consideration and advice. The convening authority may not refer a charge to a general court-martial for trial unless he has found that the charge alleges an offense under this chapter and is warranted by evidence indicated in the report of investigation.” [Emphasis supplied.]
The Manual for Courts-Martial, United States, 1951, adds the requirement that the advice be in writing and that it contain findings by the staff judge advocate or legal officer concerning compliance with the provisions of Code, supra, Article 32, 10 USC § 832; whether offenses are properly alleged in the charges and specifications ; and whether the evidence supports the charges. The staff judge advocate or legal officer must also make a recommendation concerning the type of court-martial to which the charges should be referred or the other disposition which should be made of them.
The legislative history of the Code makes it clear that the purpose of the pretrial advice is to inform the convening authority concerning the circumstances of a case in such a manner that he personally will be able to make an informed decision whether there has been compliance with the other pretrial procedures; whether the case should be tried; and the type of tribunal to which the charges should be referred. Hearings before House Armed Services Committee on HR 2498, 81st Congress, 1st Session, pages 909, 910, 1006-1009. As Judge Lati-mer noted, on behalf of the Court, in United States v Greenwalt, 6 USCMA 569, 20 CMR 285, at page 572:
“. . This is an important pretrial protection accorded to an accused, and Congress had in mind something more than adherence to an empty ritual. It placed a duty on the staff judge advocate to make an independent and informed appraisal of the evidence as a predicate for his recommendation. His is the role of an adviser, and unless he reviews the record thoroughly and accurately, he cannot soundly advise the man who has to make the ultimate decision. Therefore, to the extent that the advice rendered by him is incomplete, ill-considered, or misleading as to any material matter, he has failed to comply with the statutory obligation which rests upon him.” [Emphasis supplied.]
Turning to the ease before us, we find that the staff judge advocate used a mimeographed form in order to pre*306sent bis advice to the convening authority. By filling in appropriate blanks, he advised that officer of accused’s name and organization; the fact that he was charged with theft of $75.00 on July 3, 1960; his date of birth, his length of service; the fact that he had no previous convictions; and the maximum authorized punishment for the offense. The advice also contained “boiler plate” clauses reflecting the findings required by the Code and the Manual and a recommendation for trial by general court-martial. It omitted any reference to the fact that accused’s immediate commander and the investigating officer had recommended trial by special court-martial, and it did not summarize any of the evidence.
It is clear that this form and its contents alone would be insufficient in this case to advise the convening authority of all the circumstances pertinent to making an informed decision concerning the appropriate disposition of the charges against the accused.
As Judge Latimer notes, there was testimony which demonstrated that the offense was not aggravated and that the accused was worthy of further service in the armed forces. The recommendations for trial by special court-martial on the part of officers in a position most clearly to balance the considerations involved obviously would bear heavy weight with the convening authority in determining the nature of the forum before which the case should be heard. Yet, none of these factors were brought to his attention simply because the staff judge advocate chose slavishly to fill in blanks on a mimeographed form. In thus easing his task, he failed in his statutory duty to advise the convening authority, for the term “advice” obviously includes the concept of setting forth information upon which a reasoned approach to the ultimate decision may be based. Otherwise, the staff judge advocate would engage in no more than an empty ritual — something which could be performed by any clerk and which we have heretofore stated that Congress never intended. United States v Greenwalt, supra.
In sum, then, I am of the opinion that a mimeographed form similar to that used here does not fulfill the requirements of Code, supra, Article 34, inasmuch as it fails to provide the convening authority with the information and assistance necessary in order for him to perform his grave responsibility. I do not understand my brothers to disagree with me in this conclusion, although they indicate that minimal information may sometimes suffice. I prefer, however, an approach which encourages staff judge advocates fully to perform their statutory responsibility in every case in order to insure that they do not lead their commanders into a course of action which would not have been followed had all the facts been known.
In any event, the question of the sufficiency of the advice is not properly before us. United States v Higbie, supra. Thus, both my thoughts and those expressd in the principal opinion are intended merely as guideposts for the future. It is worthy of note, however, that all parties to the proceedings before us are agreed that any deficiency in the advice was cured by reduction of the sentence to one which could have been imposed by an Army special court-martial.
I concur in the affirmance of the decision of the board of review.