(dissenting):
I dissent.
Since I believe that the referral of this case for rehearing to the Commanding General, Fort Leavenworth, Kansas, instead of to the original convening authority, was jurisdictional error, I agree with the holding of the board of review that the proceedings at Fort Leavenworth were null and void. United States v Robbins, 18 USCMA 86, 39 CMR 86 (1969); United States v Landrum, 18 USCMA 375, 40 CMR 87 (1969). See also my separate opinion in United States v Martin, 19 USCMA 211, 41 CMR 211 (1970). I would answer the certified question in the affirmative and thus would not reach the two issues granted on the accused’s cross-petition for relief.
While my brothers agree that it was error to refer the decision for retrial to the convening authority at Fort Leavenworth instead of to the original convening authority (United States v Martin, supra), in derogation of the mandate of this Court (United States v Robbins, supra), they do not believe the error was jurisdictional in nature and that the accused, by his failure to object to the trial proceedings, waived the issue. United States v Martin, supra. Even were I to accept the view that this was not a jurisdictional error, I could not concur with their view for two reasons. First, this case was retried at Fort Leavenworth prior to the announcement of our decision in Robbins and an accused should not be held to have waived, by silence, a right of which he was unaware. Secondly, this case is distinguishable from Martin for Martin, unlike this accused, pleaded guilty after having reached an agreement with the convening authority at Fort Leavenworth to reduce the original charges and to approve only a stated sentence, which was considerably less than that which he had previously received.
The central issue here, as in Robbins, is the departure by the Judge Advocate General of the Army from the specific mandate of this Court. But as the Supreme Court stated in Cascade Nat. Gas Corp. v El Paso Nat. Gas Co. 386 US 129, 136, 17 L Ed 2d 814, 87 S Ct 932 (1967) :
“. . . No one, except this Court, has authority to alter or modify our mandate. United States v du Pont & Co., 366 US 316, 325, 6 L Ed 2d 318, 324, 81 S Ct 1243.”
This arrogation of power by the Judge Advocate General of the Army1 is, in my opinion, reminiscent of an earlier attitude toward military justice procedures as expressed by the Army in the 1960 Report to the Secretary of the Army by The Committee on The Uniform Code of Military Justice Good Order and Discipline in the Army. In commenting on that document in our Annual Report for 1960, this Court expressed itself as being,
“. . . appalled by the proposals therein contained. Their adoption would mark a return to the conditions which compelled the enactment of the Uniform Code and the establishment of this Court as a civilian tribunal charged with guaranteeing the enforcement of the Code by courts-martial and appellate tribunals within the military establishment.” [Annual Report of the United States Court of Military Appeals and The Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury, Pursuant to the Uniform Code of Military Justice, for the period January 1, 1960, to December 31, I960.]
The remand procedures, when a rehearing has been directed by this Court or by the board (Court) of (Military) review, are defined by statute. Articles 67 (f) and 66 (e), Uniform Code of Military Justice, 10 USC §§ 867 (f) and 866(e), respectively. Nowhere therein is the Judge Advocate General given any discretion in selecting the conven*443ing authority who will make the decision as to the practicability of a rehearing. Each section of the Code, referred to above, specifically directs that “The Judge Advocate General shall instruct the convening authority to take action in accordance with that decision.” (Emphasis supplied.) The obvious intention of Congress, as evidenced in the Hearings on the Code, as to who constitutes the convening authority was extensively discussed in Bobbins and need not be restated. Suffice to say, Congress intended, that the convening authority who originally referred the case to trial make the decision as to the practicability of a rehearing. United States v Smith, 16 USCMA 274, 36 CMR 430 (1966). This procedure is essentially the general civilian rule that a case should normally be returned for corrective proceedings to the same court which initially tried it, but, for good cause, remand can be to a different court. Occidental Petroleum Corporation v Chandler, 303 F2d 55 (CA10th Cir) (1962), certiorari denied, 372 US 915, 9 L Ed 2d 722, 83 S Ct 718 (1963) ; United States v DuBay, 17 USCMA 147, 37 CMR 411 (1967); United States v White, 10 USCMA 63, 27 CMR 137 (1958). Had Congress intended to repose power of selection in the Judge Advocate General, I believe it would have said so. Statutes cannot be changed by fiat of the Judge Advocate General.
Following our original reversal of this case (United States v Hart, 17 USCMA 524, 38 CMR 322 (1968)), we remanded it to the Judge Advocate General of the Army,
“. . . for proceedings not inconsistent with the opinion attached. You, therefore, are hereby advised that such proceedings be had in said case as will cause the convening authority to order a rehearing, if such rehearing is practicable. . . .” [Emphasis supplied.]
It can hardly be contended that this Court did not intend that the determination regarding the practicability of holding a rehearing be made by anyone other than the original convening authority. United States v Robbins and United States v Landrum, both supra. Had good cause been present indicating the necessity for a different course of action, we would have said so. United States v Robbins, supra. Cf. United States v Marks, 19 USCMA 389, 41 CMR 389 (1970). The Judge Advocate General, by forwarding the matber to Fort Leavenworth for determination as to a rehearing by the Commanding General of that installation, without first obtaining permission of this Court, clearly deviated from that mandate. My brothers’ acquiescence in his action subordinates this Court to the will of the Judge Advocate General of the Army and casts doubt upon our ability to exercise the judicial authority. granted by the Congress of the United States. I cannot be a party to such a flagrant usurpation of judicial power.
In footnote 2 my brothers maintain that the error was not jurisdictional and point to this Court’s mandates in prior cases where, upon a showing of good cause, we have directed that the record be sent for rehearing to one other than the original convening authority. They contend that, “If the requirement for return to the convening authority is jurisdictional as the dissent maintains, this leaves unanswered the question of the source of this Court’s authority for such a mandate since we have no power to confer jurisdiction.”
The short answer to the supposed dilemma is that when good cause is found to exist by appellate authorities, the original convening authority is thereafter disqualified by law from ordering a rehearing. Jurisdiction vests in another convening authority not by virtue of the mandate of this Court but by operation of the Uniform Code of Military Justice. See generally Articles 22-29, Code, supra. But where a mandate of this Court directs that the original convening authority may order a rehearing, even he may not deviate from that mandate. United *444States v Robbins, supra; United States v Stevens, 10 USCMA 417, 27 CMR 491 (1959).
I would answer the certified question in the affirmative and affirm the decision of the board of review.
I find it significant that of all of the services only the Army has seen fit to attempt to establish this procedure. See United States v Martin, 19 USCMA 211, 214, footnote 1, 41 CMR 211 (1970).