(dissenting):
I dissent.
When we recently decided United States v Kitchens, 12 USCMA 589, 31 CMR 175; United States v Smith, 12 USCMA 594, 31 CMR 180; and United States v Barrett, 12 USCMA 598, 31 CMR 184, I concurred, believing that the disposition of these cases established a return by my brothers to our former, clear-cut recognition of the barrier which Congress sought to erect between the military judicial process and the interference of command. The decision here, however, establishes that our reversals in those cases were mere aberrations and that my brothers are, as they did in United States v Danzine, 12 USCMA 350, 30 CMR 350, and United States v Davis, 12 USCMA 576, 31 CMR 162, removing the last vestige of an accused’s protection from the arbitrary control of court-martial sentences. In short, our affirmance here resurrects the discredited view that a court-martial is but an arm of the commander, and he is entitled to dictate the penalty it will adj udge.
I cannot agree, and in the hope of making my position with regard to command control clear and unequivocal, I set forth the reasons which lead me to conclude that either reversal should be had here or that Congress should immediately amend Uniform Code of Military Justice, Article 37, 10 USC § 837, to make it apparent to the most casual reader that it was thereby intended to clothe military tribunals, possessing the widest range of punitive powers, with full judicial character. Necessarily, therefore, I must refer to the factual situation depicted in this record, for I view it in a different light from the majority.
Accused was found guilty of absence without leave, in violation of Code, supra, Article 86, 10 USC § 886, and eleven specifications of larceny by check, in violation of Code, supra, Article 121, 10 USC § 921. He was sentenced to dishonorable discharge, forfeiture of' $43.00 per month for six months, confinement at hard labor for six months, and to be reduced to the grade of basic airman. Intermediate appellate authorities affirmed, and we granted accused’s petition for review on four issues specified therein, as follows:
“A. THE COURT MARTIAL ERRED IN FAILING TO SUSTAIN THE CHALLENGE FOR CAUSE OF MAJOR JOSEPH P. BAGLIO (R-8 and 27-31).
*225“B. THE COURT MARTIAL ERRED IN FAILING TO SUSTAIN THE CHALLENGE FOR CAUSE OF MAJOR S. ASHLEY. (R-18 and 27)
“C. THE LAW OFFICER ERRED IN SUSTAINING THE OBJECTION BY THE TRIAL counsel during voir dire EXAMINATION BY THE DEFENSE COUNSEL TO THE QUESTION, 'IN OTHER WORDS, YOU FEEL THAT EVEN THOUGH YOU ARE A MEMBER OF THE COURT, YOU ARE AT THE SAME TIME AN OFFICER OF THE AIR FORCE AND IT IS NECESSARY FOR YOU TO ENFORCE SO-TO-SPEAK SUCH DIRECTIVES?’ (R 20)
“D. IN VIEW OF THE COMMAND INFLUENCE EXERCISED IN THE CASE, THE LAW OFFICER’S DENIAL OF THE MOTION FOR MISTRIAL WAS PREJUDICIAL ERROR (R-31-32)
In addition to the foregoing issues, the Court, on its own motion, specified that the following question be briefed and argued:
“Whether paragraph 16 of Appellate Exhibit A constitutes command control affecting the imposition of sentence.”
The charges against accused were referred to trial on May 19, 1961. The court-martial convened on July 13, 1961, at England Air Force Base, Louisiana.
At the outset of the proceedings, one member of the court made known his prior knowledge of the events leading to the trial and, upon challenge, was duly excused. Following exercise of a peremptory challenge by the Government, defense counsel embarked upon a voir dire examination of the remaining court members. After asking several questions regarding their attitude in general, he produced Defense Exhibit A, a letter, dated October 1, 1959, and entitled “Duties and Responsibilities of Members of Courts-Martial.” Directed to all officers of the command to which Majors Baglio and Ashley, members of court, belonged, it provided :
“16. Only serious cases are referred to a general courts-martial, and, conversely, serious cases, except under ■ unusual circumstances, are not referred to inferior courts-martial. In determining what is a serious offense, we are guided not only by the charge itself, but by the Table of Maximum Punishments contained in the Manual. No case is sent to a general court when the maximum sentence for the offense charged may be imposed by a Special Court-Martial, nor to a special court-martial when the maximum sentence may be imposed by a summary court-martial. When a case is referred to a court for trial, you may be assured that a thorough study of the case has been made and that, if a conviction results, a sentence of the type not authorized for a lesser court is appropriate. You should remember that each case is referred to the lowest type of court which has the power to adjudge an appropriate and adequate punishment, after due consideration, prior to referral to trial, of the character, efficiency and length of service of the accused, the policies of the command and higher headquarters, the type of offense, and whether the accused should be separated from the service. Thus, if conviction results, a sentence of the type not authorized by a lower court is appropriate. However, there are exceptions to the foregoing. Sometimes the evidence for the defense is not available to the convening authority prior to trial. The evidence may develop in such a manner as to require a finding of Not Guilty; or, it may prove the accused guilty of a lesser included offense to that charged. In the latter case, the court should return a finding as to the lesser offense and adjudge a sentence appropriate thereto. In fixing a sentence, the court should bear in mind that there are three primary reasons for punishment. First, the old rule of retribution that has come down to us since biblical times that we must be punished for our sins, either here or in the hereafter, or both; second, in the case of serious crimes, it may be necessary to- incarcerate the accused in order to protect the public from him; and third, the deterrent effect of a sentence upon others who *226might be similarly tempted. In the event the offense is aggravated or there is evidence of conviction of other crimes, the court may reasonably impose the maximum sentence. On the other hand, if there are extenuating circumstances, the court should consider them and adjudge an appropriate sentence, never, however, reaching the ridiculous. The imposition of a ridiculously light sentence, following conviction, destroys completely the deterrent factor of a sentence, and greatly compromises the seriousness of the offense and the system of military justice.
“17. The court must use a great deal of common sense in arriving at an appropriate punishment. For instance, conviction of an offense for which a long period of confinement is appropriate should result in a sentence which includes a punitive discharge. If the offense is such as to warrant long confinement, then it certainly warrants a separation from the service. A court should not adjudge a long term of confinement coupled with no, or very small, forfeiture. A man sitting in the guardhouse drawing his full pay and allowance is not conducive to good morale, in the minds of airmen who are trying to do their jobs and keep out of trouble. A court should never adjudge a punitive discharge with no confinement or forfeiture. An accused convicted of an offense so serious as to warrant a punitive discharge should not be free to wander around the base, drawing his full pay, while the court-martial proceedings are being reviewed and his discharge is being processed. It will often result in his committing further offenses. A careful reading of the forms of sentences will aid the court in arriving at a balanced, appropriate and adequate sentence.
“18. A court should not, through a misguided sense of sympathy for an accused or his family, enter the field of rehabilitation. Since the beginning of recorded history, people have been seeking the means of punishing an individual for wrongdoing without also punishing the wife, children and parents. The solution to this problem has not been found. Rehabilitation lies with the commander, and should not be determined in the courtroom. As a court member, do not deprive the commander of his rights in this regard, or the accused of his opportunity to participate in a rehabilitation program and to gain the training and other benefits resulting therefrom. Rehabilitation is based on prolonged study and observation. Many facts are available to a commander in this study that are not available to the court. It is a continuing study, and the attitude of the prisoner during confinement may well be an important factor. It is general policy in the Air Force to return to duty as soon as possible a prisoner who appears to have rehabilitated himself. This policy is predicated not only on the desire to give each man an opportunity to turn over a new leaf and get back on the right track, but as well on a viewpoint of economy for the Air Force.
“19. Machinery exists for the suspension of sentences in worthy cases, and it is a further policy of the Air Force to suspend punitive discharges except when rehabilitation appears useless. Such discharges are typically suspended in the case of first offenders, except on conviction of very serious crimes, such as crimes of violence, like murder, armed robbery, and other crimes involving moral turpitude to a marked degree. A man who behaves during the period of suspension may be assured that at the expiration of the period of suspension, the discharge will be remitted and he will return to full duty status.
“20. I want to repeat that rehabilitation is not a part of your courtroom duties. You should adjudge a sentence appropriate to the offense committed, taking into consideration all the surrounding circumstances, but leaving out of that consideration your guess as to the probable future conduct of the accused and his future value to the service. You have a per-*227feet right to recommend to the convening authority, individually or collectively, that clemency be exercised. Such recommendations are not a part of the sentence however, but should be forwarded to the convening authority following the conclusion of the trial. The trial counsel and defense counsel will assist you in preparing a recommendation for clemency.”
The directive was signed by Major (then Captain) James W. Woodcock, Staff Judge Advocate to the unit which issued it. Major Ashley stated that he could not “frankly . . . say yes or no” concerning whether he had read the letter “because I’ve read so many blurbs of this type that it is difficult to correlate this with any specific part.” However, “one appeared in my in-basket approximately three days ago and I believe it’s still sitting there, I haven’t had time to look at it.” Another member, Lieutenant Colonel DeWitt, had “previously read this material, similar material I’ll say.” Major Bag-lio had “seen this and . . . the new one.” As a rule, according to Baglio, “the guidelines are presented to the members of the court in this fashion.”
Major Baglio joined Lieutenant Colonel DeWitt in “generally” accepting “the theories expressed” in the letter. Whether an accused should be “rehabilitated” and “be of [continued] use to the service” are “reserved for the convening authority.”
Approximately three weeks prior to the trial, Lieutenant Colonel DeWitt attended a lecture on military justice conducted by Major Woodcock and the defense counsel. Major Woodcock “certainly covered several points in this letter in detail.” Colonel DeWitt “took his lecture seriously.” No other member of the court attended the instruction.
In addition, defense counsel produced three other exhibits which dealt with the subject of bad checks. Defense Exhibit B, Tactical Air Command Regulation No. 35-5, dated January 16, 1961, was issued over the command line of General F. F. Everest, United States Air Force, Commander, Tactical Air Command. It stated that the “practice of issuing worthless checks will not be tolerated in this command, and prompt action will be taken under appropriate law or regulation to eliminate such practices.” It provided for establishment of a control roster and indicated that chronic offenders “will be subject to non-punitive/punitive action and/or elimination from service.”
Defense Exhibit C was a letter issued by Colonel Albert W. Schinz, United States Air Force, Commander, 401st Tactical Fighter Wing, to which many of the court members belonged. It pointed out that it had “long been a tradition of the military service that a man incapable of managing his own personal finances will be properly disciplined and, if necessary, removed from the service.” It characterized “this tradition” as “sound and necessary,” and went on to state that intentional writing of bad checks and failure to honor just debts was “cause for being placed on the control roster.”
Defense Exhibits D and E were later letters from Headquarters Tactical Air Command pointing out the high incidence of bad check offenses involving noncommissioned officers. Exhibit E bore an endorsement, dated July 11, 1961, from the commanding officer of the unit to which Majors Ashley and Baglio were attached. The endorsement emphasized that “approximately 70% of our dishonored checks were written by NCOs.” It went on to state that “commanders do not and should not tolerate financial incompetence among NCOs.” Personnel who did not live up to expected standards were to be “dealt with as outlined in AFR 39-30, AFR 39-17 or the Uniform Code of Military Justice.”
On further voir dire, Major Ashley stated that he would take the directives “into account” with respect to the findings and sentence. Major Baglio stated “these directives and policies . . will be weighed in with everything else in adjudging a sentence if the man is found guilty.” Thereafter, the law officer refused to permit defense counsel to inquire of Major Baglio whether he felt “that even though you ftre a mem*228ber of the court, you are at the same time an officer of the Air Force and it is necessary for you to enforce so-to-speak such directives?”
Upon trial counsel’s interrogation of Major Ashley, that officer reiterated his belief that the command directives regarding bad checks bore on his “determination in the particular case” before the court. It would also be “taken into consideration ... as another factor in arriving at a sentence, together with all other evidence in the case.”
Finally, the law officer asked if each member could “well and truly try the issues between the accused and the government according to . . . standards” contained in his instructions on “your duties as court members.” Each member responded that he would do so. A challenge against Major Ashley was not sustained. A challenge was then leveled against Major Baglio and similarly overruled. Prior to its submission to the court, a revised copy of the 1959 letter was identified by Baglio as superseding the older lecture and he declared that he had “just recently read it.” However, he was not aware that the new letter changed any of the contents of the earlier directive.
The new letter, dated June 21, 1961, and also signed by Major Woodcock, includes the following statements in lieu of the portion of the 1959 letter quoted above:
“16. You should remember that each case is referred to the lowest type of court which has the power to adjudge an appropriate and adequate punishment, after due consideration, prior to referral to trial, of the character, efficiency and length of service of the accused, the policies of the command and higher headquarters, the type of offense, and whether the accused should be separated from the service. Sometimes the evidence for the defense is not available to the convening authority prior to trial. The evidence presented may require a finding of Not Guilty; or, it may prove the accused guilty of a lesser included offense to that charged, or there may be extenuating circumstances in mitigation. In the latter cases, the court should adjudge a sentence appropriate thereto. In fixing a sentence, the court should bear in mind that there are three primary reasons for punishment. First, the old rule of retribution that has come down to us since biblical times that we must be punished for our sins, either here or in the hereafter, or both; second, in the case of serious crimes, it may be necessary to incarcerate the accused in order to protect the public from him; and third, the deterrent effect of a sentence upon others who might be similarly tempted. The court should adjudge an appropriate sentence, never, however, reaching the ridiculous. The imposition of a ridiculously light or heavy sentence, following conviction, greatly compromises the system of military justice.
“17. The court must use a great deal of common sense in arriving at an appropriate punishment. A careful reading of the forms of sentences will aid the court in arriving at a balanced, appropriate and adequate sentence. A court should not, through a misguided sense of sympathy for the accused’s family, enter the field of rehabilitation. Since the beginning of recorded history, people have been seeking the means of punishing an individual for wrongdoing without also punishing the wife, children and parents. The solution to this problem has not been found. Rehabilitation lies with the commander, and should not be determined in the courtroom. As a court member, do not deprive the commander of his rights in this regard, or the accused of his opportunity to participate in a rehabilitation program and to gain the training and other benefits resulting therefrom. Rehabilitation is based on prolonged study and observation. Many facts are available to a commander in this study that are not available to the court. It is a continuing study, and the attitude of the prisoner during confinement may well be an important factor. It is general policy in the Air Force to return to duty as soon as possible a prisoner who ap*229pears to have rehabilitated himself. This policy is predicated not only on the desire to give each man an opportunity to turn over a new leaf and get back on the right .track, but as well on a viewpoint of economy for the Air Force.
“18. Rehabilitation is not a part of your courtroom duties. You should adjudge a sentence appropriate to the offense committed, taking into consideration all the surrounding circumstances. You have a perfect right to recommend to the convening authority, individually or collectively, that clemency be exercised. Such recommendations are not a part of the sentence however, but should be forwarded to the convening authority following the conclusion of the trial. The trial counsel and defense counsel will assist you in preparing a recommendation for clemency.”
Subsequent to the denial of his challenges for cause, defense counsel peremptorily challenged Lieutenant Colonel DeWitt and unsuccessfully sought a mistrial because of the exertion of command control.
In United States v Danzine, supra, and United States v Davis, supra, I made crystal clear my position that the importation into a trial of command desires with respect to either findings or sentence so deprives it of judicial character that instant reversal is demanded. Indeed, in United States v Olson, 11 USCMA 286, 29 CMR 102, we stated, at page 289:
“. . . In such instances, thé respect for command authority ingrained in the average officer predisposes him to judge the accused in the light of the needs of the service rather than impartially to consider the charges and the evidence. The result is drumhead justice — a situation which may as adversely affect discipline and morale as the offenses which originally led to the pretrial lectures.”
The Olson case also involved bad checks. There, the president of the court was charged with implementation of a command program to eliminate worthless paper offenses and delivered the lectures regarding the program’s effectuation to other court members. In spite of the insistence of each and every member involved that the program and directives would not influence their deliberations on either the findings or sentence and that such were intended only to govern the investigation of purportedly worthless checks, we reversed. Indeed, we went beyond the relief for which appellate counsel prayed — a rehearing on the sentence alone — and remanded the case for a complete rehearing.
In this ease, the facts even more strongly demand reversal. While each of the court members in Olson, supra, alleged that he would not be influenced by the bad check program, the record before us establishes beyond cavil that Majors Baglio and Ashley intended to utilize the policies which the directives set forth in reaching findings of guilty and determining an appropriate sentence. In short, what was left only to “a fair risk” in the Olson case is here made express.
Dependence upon the bad check directives alone as evidence of the command control brought to bear upon this court-martial is, however, not necessary. Here, the staff judge advocate of the local command had issued directives which constitute palpable violations of Code, supra, Article 37. Indeed, in its brief, the Government “necessarily” concedes the “impropriety” of the original letter and argues only that it did not serve to influence the court members, principally because of its issuance almost two years prior to the trial and its replacement by the new directive on July 11, 1961. These are also the circumstances upon which my brothers rely in finding an absence of command control here. Once again, I must disagree.
Major Ashley indeed denied having read or being familiar with the admittedly offensive directive. Major Baglio, however, indicated he generally accepted the theories which it propounded, and he was not aware that the new letter in any way changed the *230former, improper depiction of a court-martial’s function and responsibilities. His testimony reveals beyond cavil blind acceptance of the thought that, once a case had been the subject of “a thorough study,” and referred to a court-martial for trial, “a sentence of the type not authorized for a lesser court is appropriate.” (Emphasis supplied.) In other words, where charges were referred to trial by general court-martial, he operated under the assumption that it was improper to consider any sentence less than a dishonorable discharge. Cf. United States v Zagar, 5 USCMA 410, 18 CMR 34.
Moreover, the fact that the original letter was replaced with a new directive on July 11, 1961, should have no palliative effect on the situation before us. In the first place, at least one court member did not understand that it in any way altered the policies set forth in the first letter. In the second, it appears that his conclusion is soundly premised, for a comparison of the two documents, both quoted above, reveals that the second merely repeated the earlier injunctions, albeit in milder terms. Thus, it reiterates the declaration that “each case is referred to the lowest type of court which has the power to adjudge an appropriate and adequate punishment,” after consideration of all the circumstances, including “whether the accused should be separated from the service.” Moreover, the only excuses for not adjudging a sentence within the competence of the type of court trying the case is whether there are factors introduced which were not presented to the convening authority prior to trial or whether there were unexpected findings of guilty of a lesser offense. Finally, imposition of “ridiculously light or heavy” sentences are said to “greatly” compromise the military justice system.
I find little distinction between these instructions and those which the Government admits were inexcusably in violation of Code, supra, Article 37. Both clearly inform court members that general courts-martial should adjudge punitive discharges on the ground that the convening authority would not otherwise have referred the case for trial. And while my brothers emphasize the date of the early directive, the replacement letter was prepared only two days prior to the opening of accused’s trial. Thus, not only did the admittedly illegal instruction remain in effect until just prior to the trial, but it was superseded only by a document equally offensive.
In United States v Kitchens, supra, we reversed solely because an assistant staff judge advocate at Fort Jackson, South Carolina, indicated in a pretrial letter to court members a desire personally to learn the motivation for various sentences which did not- include punitive discharges. In that case, the letter was withdrawn before accused’s trial by a second missive which reiterated that the original had been intended solely as a personal quest for information. We castigated the author of the letters and characterized the first inquiry as an attempt to compel inclusion of punitive discharges in general courts-martial sentences and the second as an obvious device to undermine any subsequent defense claim of command control. See also United States v Smith and United States v Barrett, both supra.
As noted at the outset, I believe our decisions in these three cases compel reversal here. What was hidden under the cover of an informational inquiry there is boldly stated upon this record. Major Woodcock made it quite plain that only general court-martial sentences would be acceptable from such tribunals and, as some of the members were attached to his command, it is immaterial it was his unit, rather than the actual convening authority, who issued the instructions. Indeed, command influence is more real at that level, for it is to his immediate superior that a court member must look for efficiency reports, leaves, quarters, and other factors which most directly affect the attractiveness of his career. And it is unfortunately yet true that:
“. . . In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” [Hamilton, The Federalist No. 79 (Cooke ed 1961), page 531.]
*231In sum, then, I am convinced that the bad check directives in this ease were so imported into the courtroom that certain members felt bound to utilize the judicial process to accused’s detriment in order to attain a command objective. More importantly, at least one of the members consistently stated his intention to abide by the illegal command instructions on military justice, which had been replaced by others which I find equally in violation of the law. Under the circumstances, accused did not receive a fair trial, and his case should be reversed. I remind my brothers that only such summary action will serve to require observance of the Congressional mandate contained in Code, supra, Article 37, for, though this Court has sat for eleven years, and reviewed numerous records involving the issue, we have yet to see a single person brought to trial for violation of an accused’s right to an impartial hearing. Reversal, therefore, remains the only shield to which an accused may look for protection against arbitrary interference.
I would reverse the decision of the board of review and order a rehearing to be held in another command.