(dissenting):
I dissent.
This case is now before us on the petition of the Government for reconsideration. On October 29, 1965, after briefs and argument, we rendered our decision herein. United States v Ortiz, 15 USCMA 505, 36 CMR 3. Subsequent thereto the Government filed the instant petition. The Judge Advocate General of the Navy, on behalf of the Secretary of the Navy, moved that he be given permission to enter the case as amicus curiae and to file a brief in support of granting the reconsideration prayed. By order, we granted such motion and directed that a brief might be filed. Briefs were filed by the Government, appellant, and amicus curiae. Arguments have been heard by both parties and the amicus curiae.
Appellant was tried by a special court-martial convened by the Commanding Officer, 2d Bridge Company, Force Troops, Fleet Marine Force, Atlantic, Camp Lejeune, North Carolina, on several specifications, to some of which he entered a plea of guilty and as to others not guilty. He was convicted of all the specifications. He was sentenced to confinement at hard labor for four months, forfeitures, and a bad-conduct discharge. The convening authority approved the sentence. The officer exercising general court-martial jurisdiction reduced the forfeitures, approved the confinement and approved the bad-conduct discharge, but suspended execution of the discharge for the period of confinement and six months thereafter. Subsequently, all unexecuted confinement and forfeitures were remitted by the Commanding General, Force Troops. A board of review in the office of The Judge Advocate General of the Navy affirmed the findings of guilty and sentence as approved on review below.
This Court granted review on the single issue:
“Whether the Convening Authority was authorized to convene special courts-martial under Article 23 of the Uniform Code.”
After briefs and argument on that issue, we rendered our decision here-inbefore mentioned.
Upon the original submission of this case, Government counsel placed primary reliance on subparagraphs (5) and (6) of Article 23(a), Uniform Code of Military Justice, 10 USC § 823. *132The brief first mentioned the possible application of subparagraph (7) thereof in the following statement:
". . . Furthermore the Appel-lee suggests that although the provisions of Article 23(a) 7 are not necessarily involved in the case at bar that there is authority in the law for the appointment of the court under this provision also.”
In a similarly summary fashion, our opinion of more than four pages disposed of the possible application of Article 23(a)(7), supra, in a single paragraph which begins, “The Government’s final argument may be swiftly handled.”
In marked contrast, the brief by Government counsel in support of the petition for reconsideration relies solely and entirely on the provisions of Article 23(a)(7), rather than Article 23(a) (5) and 23(a) (6) of the Code. In support of the present petition for reconsideration, Government counsel formulate and submit the following argument:
“I. THE SECRETARY OF THE NAVY, WITH PULL AND SPECIFIC INTENT TO DO SO, DID IN FACT DESIGNATE AS EMPOWERED TO CONVENE SPECIAL COURTS-MARTIAL VARIOUS CATEGORIES OF COMMANDING OFFICERS, ONE OF WHICH INCLUDED THE COMMANDING OFFICER, 2D BRIDGE COMPANY, THIS DESIGNATION BY EXPRESSED AND SPECIFIC REFERENCE INVOKED THE AUTHORITY GRANTED THE SECRETARY OF THE NAVY BY ARTICLE 23(a)(7) OF THE CODE.
“II. THE DESIGNATION BY THE SECRETARY OF THE NAVY OF VARIOUS CATEGORIES OF COMMANDING OFFICERS EMPOWERED TO CONVENE SPECIAL COURTS-MARTIAL WAS A LAWFUL, VALID AND EFFECTIVE EXERCISE OF THE AUTHORITY GRANTED HIM BY ARTICLE 23 (a) (7) OF THE CODE.
A. NEITHER THE LANGUAGE OF ARTICLE 23, ITS LEGISLATIVE HISTORY, NOR ANY OTHER PROVISION OF LAW SUGGESTS AN EXPRESS OR IMPLIED LIMITATION ON THE AUTHORITY SO GRANTED OR THE MANNER IN WHICH IT MAY BE EXERCISED.
B. THE ACTION OF OTHER INDIVIDUALS (IN CREATING OR DESIGNATING SEPARATE OR DETACHED COMMANDS WITHIN THE CATEGORY ESTABLISHED BY THE SECRETARY) IS IN NO SENSE A DELEGATION OF THE SECRETARY’S DISCRETION UNDER THE ARTICLE BUT MERELY A DETERMINATION OF A CONDITION UPON THE OCCURRENCE OF WHICH THE SECRETARY’S DESIGNATION APPLIES.
“III. THE COMMANDING GENERAL, FORCE TROOPS, FMFLANT LETTER (DESPITE INARTFUL DRAFTSMANSHIP) EFFECTIVELY DESIGNATED THE 2D BRIDGE COMPANY A SEPARATE AND DETACHED COMMAND. THE COMMANDING OFFICER THEREOF WAS THEREFORE CLEARLY AND DEFINITELY WITHIN A CATEGORY DESIGNATED BY THE SECRETARY AND THE CONVENING OF THE SPECIAL COURT-MARTIAL WAS A PROPER EXERCISE OF A LAWFUL AND VALID POWER LAWFULLY And effectively conferred.”
In addition, Government counsel now call to our attention various actions by the Secretary of the Navy in implementation of Article 23, Uniform Code of Military Justice, supra, and specifically Article 23(a)(7). This Court will take judicial notice of such directives and regulations of the Secretary in the implementation of Article 23(a) (7), which authorizes special courts-martial to be convened by:
“. . . the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.”
See paragraph 147 a, Manual for Courts-Martial, United States, 1951; United States v Taylor, 2 USCMA 389, 9 CMR 19.
Such regulations when adopted in accordance with Congressional authorization, as is the case under Article 23(a)(7), have the force of law. United States v Smith, 13 USCMA 105, 32 CMR 105. Notwithstanding, and in view of the voluminous character of departmental regulations, it would appear that this Court is not asking nor expecting too much in suggesting that the Government, when relying upon such a regulation, fully develop its *133contention, particularly in a case to which, as here, they attach such importance.1 Had this been done in the instant case, the present difficulty might have been avoided.
In its former opinion, this Court considered, in detail, the proper construction of Article 23(a) (5), and Article 23(a)(6), and determined that under those provisions the Commanding Officer of the 2d Bridge Company would not have authority to convene special courts-martial. That conclusion is correct and, as the majority point out, we all adhere to the same. The area as to which I part company with my brothers is the application of Article 23(a) (7).
I now consider the case in the context of the expanded arguments presently submitted by Government counsel and the amicus curiae, in the light of the regulations promulgated by the Secretary of the Navy in the implementation of Article 23 (a) (7).
At all times here involved the controlling regulation of the Secretary of the Navy appeared in section 0103b of the Manual of the Judge Advocate General, reading:
“Special courts-martial. — In addition to those officers otherwise authorized by article 23 of the Code, the following officers are, pursuant to article 23(a)(7) of the Code, hereby designated as empowered to convene special courts-martial:
“(5) All commanding officers and officers in charge of commands now or hereafter designated as separate or detached commands within the meaning of article 23 of the Code by a flag or general officer in command (including the commander of a multi-service command to which members of the naval service are attached).”
This provision of The Judge Advocate General’s Manual was issued over the signature of the Secretary of the Navy.
It also appears that, at various times prior to the promulgation of the regulation herein immediately preceding, the Secretary of the Navy had issued a number of regulations under Article 23(a) (7), which were amended or superseded. The immediate precursor of this regulation had contained some sixty-five commands by specific designations thereof. The purpose of the current regulation was to cancel those specific designations and to create a category of separate or detached commands and defining them as “designated as separate or detached commands ... by a flag or general officer in command.”
That the Secretary of the Navy intended to, and did, bestow special court-martial authority on separate or detached commands designated by a flag or general officer in command, seems manifest. And such is true notwithstanding the inclusion in The Judge Advocate General’s Manual provision of the language “within the meaning of article 23 of the Code.” The regulation, it is to be noted, begins with the statement:
“In addition to those officers otherwise authorized by article 23 of the Code, the following officers are, pursuant to article 23(a)(7) of the Code, hereby designated as empowered to convene special courts-martial. . . [Emphasis supplied.]
It is evident the Secretary was bestowing special court-martial authority on officers in addition to those “otherwise authorized by article 23 of the Code.” Additionally, it should be borne in mind that no such regulation would be necessary to confer special court-martial authority on officers already having such by reason of *134other provisions of Article 23. We should not assume that the Secretary of the Navy was engaging in a futile or useless action when he issued so formal a matter as a regulation. If such were true, Article 23(a)(7) of the Code would be meaningless. And, indeed — as is noted hereinafter — the Secretary of the Navy, both under the Code as well as prior thereto under the same statutory authority, has vested court-martial authority under Article 23 (a) (7), and its precursors, in commanders in addition to those otherwise so empowered by other portions of the applicable statute.
That the 2d Bridge Company came within the category created by the Secretary of the Navy in section 0103b (5) of The Judge Advocate General’s Manual, is clear by the letter of the Commanding General, Force Troops, which reads as follows:
“From: Commanding General
“To: Commanding Officer, 2d Bridge Company, Force Troops, Fleet, Marine Force, Atlantic, Camp Lejeune, North Carolina
“Subj: Authority to convene courts-martial
“Ref: (a) Art 1401.3, U. S. Navy Regulations, 1948
(b) JAG Manual sec. 0103b (5)
(c) SECNAVINST 5810.4B
(d) Arts 23 and 24, UCMJ
(e) Par 5b (3), MCM, 1951
“1. Pursuant to the authority of references (a), (b), and (c), 2d Bridge Company, Force Troops, Fleet Marine Force, Atlantic, is hereby designated a separate and detached command within the meaning of references (d) and (e). This designation shall continue until revoked by competent authority. Accordingly, the commanding officer is authorized to convene summary and special courts-martial and exercise the powers incidental to this authority as provided by law and regulation.”
That this letter is an unequivocal designation of the 2d Bridge Company as a separate or detached command is. not open to argument. Nor can the letter be construed as an attempt by the Commanding General, Force Troops, to confer special court-martial jurisdiction. Jurisdiction could be conferred only by action of the Secretary of the Navy and that he had done by the quoted provisions of The Judge Advocate General’s Manual. The correct construction of the letter is that, by reason of his designation of the company as a separate or detached command, automatically it fell within the category already established and vested with special court-martial authority by the Secretary of the Navy, for it begins, “Accordingly.”
For another and stronger reason it was advisable or necessary to include the recitation of authorization to convene summary and special courts-martial. Paragraph 56(4), Manual for Courts-Martial, United States, 1951, reads:
“A subordinate commander may exercise his power to appoint special courts-martial unless a competent superior reserves that power to himself and so notifies the subordinate.”
Additionally, the Secretary of the Navy’s Instruction 5810.4C, dated January 9, 1962, had called attention to this provision of the Manual in the following paragraph:
“5. Summary Courts-Martial Convening Authorities. No provision is made in this Instruction for specific grants of authority to convene summary courts-martial since that authority flows from the authority to convene special courts-martial. However, in accordance with the provisions of subparagraphs 5b (4) and 5c, MCM 1951, the exercise of authority to convene special courts-martial may be restricted by a competent superior commander. Accordingly, any authority to convene, as generally or specifically granted by this Instruction, or otherwise, may be wholly or partially restricted by such superior commander.”
It was therefore desirable that the Commanding General indicate that the authority to convene special courts-martial was not reserved to himself or otherwise restricted.
*135I am aware of nothing which would militate against the validity of the Commanding General’s designation of the 2d Bridge Company as a separate or detached command, even though it be conceded, arguendo, that the Commanding General sought to exercise the power, which he did not possess, to himself confer court-martial jurisdiction.
Prior to the adoption of the Uniform Code of Military Justice, the Navy did not have courts-martial denominated “special courts-martial.” The equivalent thereof were denominated “summary courts-martial.” The power to convene such summary courts-martial was controlled by Article 26, Articles for the Government of the Navy, as amended by the Act of August 29, 1916 (R. S., section 1624, Article 26, chapter 417, 39 Stat 586). That Article reads as follows:
“Convening authority. — Summary courts martial may be ordered upon petty officers and enlisted men in the naval service under his command by the commanding officer of any vessel, the commandant of any navy yard or naval station, the commanding officer of any brigade, regiment, or separate or detached battalion, or other separate or detached command, or marine barracks, and, when empowered by the Secretary of the Navy, by the commanding officer or officer in charge of any command not specifically mentioned in the foregoing, for the trial of offenses which such commanding officer or commandant may deem deserving of greater punishment than he is authorized to inflict, but not sufficient to require trial by a general court martial.” [Emphasis supplied.]
It is evident that the above emphasized portion of Article 26 effectively includes the substance of Article 23 (a) (6), and Article 23 (a) (7), Uniform Code of Military Justice, supra. The last-mentioned provisions, respectively, authorize the convening of special courts-martial by:
“(6) the commanding officer of any separate or detached command or group of detached units of any of the armed forces placed under a single commander for this purpose; or
“(7) the commanding officer or officer in charge of any other .command when empowered by the Secretary concerned.”
The legislative history of the Uniform Code of Military Justice shows that Congress fully understood that these portions of Article 23 were reenactments of previously existing law.
At page 1137 of the hearings before the Subcommittee of the House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, 1949, regarding the Uniform Code of Military Justice, it is made evident that the Subcommittee was considering the bill by reading it section by section. In that connection Mr. Robert Smart, Chief Counsel of the Committee on Armed Services, was reading each section and a commentary and supplementing the same by his own remarks, in some of which colloquies Mr. Felix Larkin, Assistant General Counsel, Office of the Secretary of Defense, participated. At page 1137 it is shown that Mr. Smart read the language of Article 23 and immediately thereafter stated the following:
“References: A. W. 9, A. G. N., article 26.
“Commentary: This article is derived from A. W. 9. Provisions for all the armed forces have been added. An ‘officer in charge’ is an officer of the naval service or Coast Guard who is not known by the title of ‘commanding officer’ but exercises similar authority. Subdivision (b) conforms to article 22.
“Mr. BROOKS [Chairman of the Subcommittee]. You have heard the article. Are there any questions on it? Any changes suggested? If not — ■
“Mr. SMART. It is a restatement of existing law, Mr. Chairman.
“Mr. BROOKS. Yes.
“Mr. Rivers. Do you want anything for the record?
*136“Mr. SMART. That is all that needs to be, sir.
“Mr. BROOKS. Yes. It is just the same law restated there.
“Mr. LARKIN. Yes, sir.
“Mr. BROOKS. If there are no objections, then, it stands adopted as read.” [Hearings before the House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1137.]
There can be no question that the Subcommittee was fully informed that Article 23 constituted a consolidation of Article of War 9 and Article 26 of the Articles for the Government of the Navy. Being so informed it adopted Article 23 as a re-enactment of Article of War 9 and Articles for the Government of the Navy, Article 26.
That the House of Representatives was informed that Article 23 constituted a re-enactment of Article of War 9 and Articles for the Government of the Navy, Article 26, is made clear by the report of the Committee on Armed Services accompanying the bill enacting the Uniform Code of Military Justice, Report No. 491, 81st Congress, 1st Session, at page 17, which contains the substance of the above quoted “Commentary” and the exact words, “References: A. W. 9, A. G. N., article 26.” That the Senate was similarly informed appears from Senate Report No. 486, 81st Congress, 1st Session, entitled ^Establishing a Uniform Code of Military Justice,” page 14, where the exact “Commentary” and “References” quoted above appear.
When Congress re-enacts a previously existing law and that law has been construed by the Executive Department bearing the burden of its administration, such re-enactment “constitutes a recognition and ratification of prior interpretation.” United States v Davis, 12 USCMA 576, 31 CMR 162.
In connection with the petition for reconsideration, the amicus curiae points out that during a period of forty-nine years, beginning with the amendment of Articles for the Govqrnment of the Navy, Article 26, in 1916, the Secretary of the Navy exercised the authority on many occasions by names of organizations and by category. This Court is now furnished five instances prior to the enactment of the Code and six instances subsequent thereto, including the current designation of separate and detached commands by flag or general officer.
This information was not called to our attention upon original submission. The importance therefore cannot be overlooked. This Court recently had occasion to consider a closely related question in United States v Scheunemann, 14 USCMA 479, 34 CMR 259. In that case, at pages 482-83, we also quoted with approval from Crawford, The Construction of Statutes, section 219 (1940), as follows:
. . Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight. It is highly persuasive.’ ”
What we then said also applies here.
I recapitulate: It is evident, and we should so hold, that by the enactment in 1916 of the amendment to Article 26, Articles for the Government of the Navy, Congress intended to, and did, grant to the Secretary of the Navy authority to designate separate and *137detached commands which should have power to convene special courts-martial. That, subsequent to that enactment, the Secretary of the Navy construed the enactment as granting that power and acted accordingly until 1950 when the Uniform Code of Military Justice was enacted. That the Uniform Code of Military Justice effectively re-enacted such provisions of Article 26 and thereby recognized and ratified the prior interpretation of the Secretary of the Navy. That the action of the Secretary of the Navy in establishing a category of separate or detached commands is in substantial compliance with Article 23 (a) (7), Uniform Code of Military Justice. That the action of the Commanding General, Force Troops, in designating the 2d Bridge Company as a separate and detached command, is a substantial compliance with the directive of the Secretary of the Navy. Therefore, the Commanding Officer of the 2d Bridge Company was authorized to convene special courts-martial under Article 23(a) (7) of the Uniform Code of Military Justice.
In my view, therefore, the petition for reconsideration should be granted.
In fairness, it should be noted that the Government’s brief, on the original petition for grant of review, did go on to outline, as an alternative approach, the application of departmental regulations in vesting special court-martial jurisdiction in the case at bar under Article 23 (a) (7). In any event, however, the matter was presented with such emphasis on sub-paragraphs (5) and (6), that this Court gave primary attention to them rather than the application of the regulations under subparagraph (7).