(concurring in the result) :
I concur in the result.
This case points up the distinction between permitting counsel for the pretrial investigating officer to serve thereafter as trial counsel in the same case and permitting the prosecutor himself to appear in his proper capacity at the pretrial investigation. In my opinion, the former must be considered disqualified to act thereafter as a member of the prosecution. Uniform Code of Military Justice, Article 27, 10 USC § 827; United States v Bound, 1 USCMA 224, 2 CMR 130; United States v Lee, 1 USCMA 212, 2 CMR 118. And see my separate opinion in United States v Young, 13 USCMA 134, 32 CMR 134, this day decided. The latter, however, acts in a capacity at the investigation no different from that of a United States District Attorney appearing at a preliminary hearing before the United States Commissioner. While no authority for such an appearance is to be found in the Uniform Code, it is not forbidden and could not be harmful to accused’s substantial rights. Cf. United States v Mullican, 7 USCMA 208, 21 CMR 334. At the same time, it should be noted, as it was in the Mullican case, at page 211:
“. . . If, on the other hand, the services decide that some such proceedings — as distinct from those now provided — are desirable, they should be set up in an orderly fashion under the provisions of Article 36(a.), Uniform Code of Military Justice, 50 USC § 611, or by way of amendment to the Code.”
As I am also in agreement with the Chief Judge that the board of review’s reassessment of the sentence cured the prejudice flowing from trial counsel’s inflammatory argument; that the instructions of the law officer concerning the sentence were, on the whole, proper; and that an accused may be punished separately for the larceny of property and its subsequent sale or pledging to an innocent third party, I am able to join in the affirmance of the decision of the board of review.