(dissenting):
I dissent.
As my brothers acknowledge, since Captain Warren had previously acted as the Article 32 investigating officer in this case, he was, thereby, disqualified by operation of law from preparing the post-trial clemency report. Article 6 (c), Uniform Code of Military Justice, 10 USC § 806; paragraph 85a, Manual for Courts-Martial, United States, 1969 (Revised edition); United States v Coulter, 3 USCMA 657, 14 CMR 75 (1954); United States v Crunk, 4 USCMA 290, 15 CMR 290 (1954); United States v Clisson, 5 USCMA 277, 17 CMR 277 (1954); United States v Hightower, 5 USCMA 385, 18 CMR 9 (1955); United States v Hill, 6 USCMA 599, 20 CMR 315 (1956); United States v Albright, 9 USCMA 628, 26 CMR 408 (1958); United States v Cash, 12 USCMA 708, 31 CMR 294 (1962). See also United States v Nees, 18 USCMA 29, 39 CMR 29 (1968). The fact that the report may have been eminently favorable to the accused is immaterial, for, as the Chief Judge, writing for the Court in Hightower, said, at page 389:
“. . . Congress intended to remove all possibility of bias; it did not contemplate ferreting for motives and delicate balancing of previous influences against objective fairness. Cf. United States v Deain, 5 USCMA 44, 17 CMR 44 [1954]. We must insist on adherence to the Congressional policy directed against conduct tending to impair the impartiality of the post-trial review.” [Emphasis supplied.]
Despite the clear meaning of these words, my brothers have, in this case, done precisely what was said in High-tower to be contrary to the intent of the Congress when it enacted Article 6(c) of the Code. By analyzing the contents of Captain Warren’s report and deciding that the accused was not prejudiced thereby, they have ferreted for motives and delicately balanced the previous influence against objective fairness. Our insistence in Hightower on adherence to the law has been, in my opinion, too lightly set aside.
The question is not whether the report reflects that Captain Warren was impartial in his review, for in High-*45tower, where we reversed because the post-trial reviewer (Captain Hudson) was disqualified under Article 6 (c), we said of the Captain, “we are sure that he was honest and sincere in his belief that he could act dispassionately.” (5 USCMA, at page 389.) The only issue is whether we, as an appellate Court, will enforce the clear meaning of the statute and the intent of Congress. The statute has been violated in this case and this Court has been asked to find a reason (lack of prejudice) not to reverse.
The obvious purpose of the lawmakers was to assure the accused a thoroughly fair and impartial review. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 898, 901. As this Court said in United States v Gordon, 1 USCMA 255, 262, 2 CMR 161 (1952):
“Again, the right to an impartial review is an important right which must be recognized in the military judicial system and an accused is entitled to have the record reviewed and the limits of his sentence fixed by one who is free from any connection with the controversy.”
No one can go into the mind of the reviewer. Human behavior is such that when a person, interested in the outcome of the proceedings by virtue of his prior participation therein, is called upon to take part in the post-trial proceedings, his view is necessarily different from that of a person who had no previous interest in the matter. Congress understood this and sought, by the enactment of Article 6 (c), to prevent the situation presently before us. As appellate judges, we do a disservice to the system of military justice by ever countenancing violations of the law by those charged with upholding the law. The right to an impartial review is an important right, which must be jealously guarded lest abuses creep in.
As I have previously stated, the question of lack of prejudice is, in my opinion, immaterial. The law is clear. Unless and until we insist on strict adherence to the law, military justice will not be accorded the respect and confidence it rightly deserves.
I would reverse the decision of the United States Air Force Court of Military Review and direct that a new post-trial review and action by a different convening authority may be ordered.