(concurring):
I concur.
Our examination of the record of trial in this case led us to conclude that only suspension of the punitive discharge for a probationary period would strike an appropriate balance between the nature of the offenses and the individual background and rehabilitative potential of this offender. We found that neither approval of an unsuspended bad conduct discharge nor disapproval of the discharge altogether would be compatible with our mandate under Article 66(c) of the Uniform Code of Military Justice. Mindful that executive clemency may be granted during the pendency of the reg*956ular appellate process; United States v. Russo, 11 U.S.C.M.A. 352, 29 C.M.R. 168 (1960); United States v. Clark, No. 74 2853 (N.C.M.R. 31 March 1976) (upon reconsideration), we forwarded the record of trial to the Judge Advocate General with a request that he exercise his authority to suspend the execution of the punitive discharge, United States v. Silvernail, 1 M.J. 945 (N.C.M.R. 1976).1 The Judge Advocate General, however, has declined to exercise clemency before completion of our review under Article 66 of the Code and returned the record to this Court.
Is a Court of Military Review empowered to order that a sentence be suspended for a probationary period?
The nature of the role of a Court of Military Review under the Uniform Code of Military Justice and reasons of public policy strongly favor exercise of suspension power over sentences that are subject to our review. The legislative history of Article 66 contains this description of the power of a Board of Review, now a Court of Military Review, over a court-martial’s sentence:
“The Board may set aside, on the basis of the record, any part of a sentence, either because it is illegal or because it is inappropriate. It is contemplated that this power will be exercised to establish uniformity of sentences throughout the armed forces.” House Report No. 491, 81st Congress, 1st Session, on H.R. 4080; Senate Report No. 486, 81st Congress, 1st Session on H.R. 4080.
Reduction of disparity in sentences awarded to similarly situated defendants has been widely recognized as an important goal of the criminal justice process in the decades since the enactment of the Uniform Code. See, e. g., 28 U.S.C. § 334, which, “In the interest of uniformity in sentencing procedures, authorized the establishment of institutes and joint councils on sentencing” & ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, approved by the ABA House of Delegates in February 1968, § 1.2. The Honorable Marvin Frankel, United States District Judge, Southern District of New York, has said, “the crazy quilt of disparities — the wide differences in treatment of defendants whose situations and crimes look similar and whose divergent sentences are unaccounted for — stirs doubts as to whether the guarantee of the ‘equal protection of the laws’ is being fulfilled.” Frankel, Criminal Sentences, Law Without Order, (1972) p. 103.
It has been said that courts with criminal jurisdiction have the inherent power to suspend sentences and that such power is derived from the common law, customs, and judicial decisions. 21 Am.Jur.2d (1957), Criminal Law, sec. 552. On the other hand respectable authority dictates that absent statutory authority, “a court does not possess any power to suspend a sentence.” 5 Wharton’s Criminal Law and Procedure, 1957 ed., sec. 2192; United States v. Simmons, 2 U.S.C.M.A. 105, 6 C.M.R. 105 (1952). I agree with the Senior Judge that suspension authority is granted by Article 66, UCMJ.
This appeal demonstrates that examination of the entire record may convince us that the appropriate sentence should include a probationary period during which the rehabilitation of the offender will be motivated in part by his awareness that the “Sword of Damocles” we have suspended above him will fall if he lapses into wrongdoing. In the past a Draconian approach to either the appellant or to the United States resulted because we either approved punishment to be executed or disapproved the punishment entirely if we did not wish to countenance its execution. Confronted by this Hobson’s choice, we often overstep the mark by gross action despite our awareness that the more moderate response of retaining the element of punishment but suspending its execution would be the fittest course to follow. Suspension power provides this Court with a tool of considerable precision and flexibility in setting terms of actual *957confinement and providing an opportunity to an appellant to forestall punitive discharge by completing a period of creditable service. It would be particularly valuable in reducing disparity in the quantum of punishment actually experienced by different defendants.
Granting that an ability to suspend the execution of a sentence is desirable, is there a demonstrable basis for this power in the language of the Code? Article 66(c), which sets out the scope of review and powers of this Court therein, contains this provision:
“In a case referred to it, the Court of Military Review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.”
This subsection grants the power to remit a sentence entirely. United States v. Simmons, supra. Remission of a punitive discharge or other punishment is a more extensive act than suspension of the punishment for a probationary period. In the latter instance misbehavior by the probationer may lead to vacation of the suspension and reimposition of the suspended punishment. In the former instance the punishment is entirely annihilated and cannot be reinstated under any circumstances. It would appear to follow that power to accomplish the greater result includes and implies the power to accomplish a result of a lesser magnitude.
Two principles of statutory construction provide that:
“The statute embraces such consequential applications and effects as are necessary or essential or natural or proper.” 2A Sutherland, Statutory Construction § 55.-03 (4th edition).
“Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication.” Id. § 55.04.
As Senior Judge Newton points out, if an unsuspended, executed sentence be taken as the standard, then a suspended sentence is a lesser portion or degree than the standard, for it must be ordered into execution before the accused suffers the punishment. Thus the language of Article 66(c) which permits this Court to approve “such part or amount of the sentence” as it determines should be approved implies the incidental and necessary power to accomplish this result by ordering suspension of a portion of the sentence for a probationary period. In People v. Zuckerman, 5 N.Y.2d 401, 185 N.Y.S.2d 8, 157 N.E.2d 862 (1959), the New York Court of Appeals construed § 543 of the New York Code of Criminal Procedure, which provided in part that an appellate court might “reduce the sentence imposed.” The Court of Appeals held that “[u]nder the broad powers of the Appellate Division to reduce sentences is included the power to hold, in a proper case, that sentence or the execution of sentence should be suspended.” 5 N.Y.2d at 403-404, 185 N.Y.S.2d at 10, 157 N.E.2d at 863. The present New York statute, § 470.15 of the Criminal Procedure Law, which permits the appellate court to “modify the criminal court judgment, sentence or order”, has also been interpreted as implying a power to suspend the sentence. See, e. g., People v. Telech, 47 A.D.2d 997, 366 N.Y.S.2d 750 (4th Dept. 1975); People v. Bonomo, 47 A.D.2d 862, 366 N.Y.S.2d 42 (2nd Dept. 1975). The New York court’s interpretations of statutes similar to Article 66(c) of the Code seem both apposite and persuasive.
The leading military case in this area is United States v. Simmons, 2 U.S.C.M.A. 105, 6 C.M.R. 105 (1952). In this early case the Court of Military Appeals held that the Boards of Review did not possess power to suspend the execution of a sentence. The Court recognized the arguments in favor of the exercise of the power of suspension at the intermediate appellate level:
“We are impressed by the defense argument of the desirability of having this power vested in the boards of review, and recognize merit in the contention that boards of review cannot adequately fulfill *958the mandate either to impose appropriate sentence or ensure uniform sentence practices throughout the services unless they have the power to suspend disciplinary discharges. In addition, it seems anomalous that a board should have the power to remit a disciplinary discharge entirely, but not to suspend it for a probationary period.” 2 U.S.C.M.A. at 106, 6 C.M.R. at 106.
The Court held, however, that Congress’ failure to expressly grant such power in Article 66 compelled the conclusion that suspension power did not exist in the boards of review. See United States v. Cavallaro, 3 U.S.C.M.A. 653, 14 C.M.R. 71 (1954).
The policy reasons acknowledged by the Court of Military Appeals in Simmons have taken on additional importance as our caseload has risen, with the consequent increase in the number of cases where our exercise of a suspension power would be appropriate. Our possession of this power is inherently neutral, favoring neither appellant nor the United States, for it gives us an ability to retain some element of the sentence when we find approval of an unsuspended sentence impossible and might otherwise be impelled to disapprove the sentence entirely absent the power to suspend. Time has sapped the vitality of Simmons. Compare United States v. Cox, 22 U.S.C.M.A. 69, 46 C.M.R. 69 (1972) with United States v. Keller, 23 U.S.C.M.A. 545, 50 C.M.R. 716, 1 M.J. 159 (1975). In his dissent to the Keller decision, Judge Cook stated, “I also disagree with the majority’s disposition, which apparently contemplates that the Court of Military Review cure the perceived error by affirming only a suspended sentence.” 23 U.S.C.M.A. 547, 50 C.M.R. 718, 1 M.J. 161. In light of these cases and their generally more expansive view of the express and implied judicial powers of this Court, cf. Kelly v. United States, 23 U.S.C.M.A. 567, 50 C.M.R. 786, 1 M.J. 172 (1975) (all writs power of Court of Military Review), our judicial superiors might re-examine the reasoning of Simmons and confirm instead the between-the-lines implication of Keller discerned by Judge Cook.
I agree with the Senior Judge that the Appeals Court did not come to grips with the issue in Simmons, supra. Unlike many appellate courts, we are expressly charged by statute with adjudicating anew a “sentence or such part or amount of the sentence” as we determine in our absolute discretion is “correct in law and fact” and “on the basis of the entire record, should be approved.” Article 66, UCMJ. In this area then we are required to exercise that judicial sentencing power traditionally given to the trial court, cf. 18 U.S.C.A. 3651. Our authority has been held to include the power to suspend under certain circumstances. United States v. Cox, supra; United States v. Glaze, 22 U.S.C.M.A. 230, 46 C.M.R. 230 (1973); United States v. Estill, 9 U.S.C.M.A. 458, 26 C.M.R. 238 (1958); United States v. Keller, supra. Consequently, I am convinced that Simmons is not controlling. I likewise agree with Senior Judge Newton’s rationale as to the application of paragraph 100a, Manual for Courts-Martial, United States, 1969 (Revised edition). The Manual states merely an opinion as to existing case law rather than expressing a presidential mandate requiring compliance.
I concur in affirming the findings and affirm so much of the sentence as provides for a suspended bad conduct discharge, confinement at hard labor for 45 days, and forfeiture of $200.00 per month for three months. Appropriate authority will provide that the period of suspension run for one year or less from the date sentence was adjudged and at the expiration of that period, unless sooner vacated, the bad conduct discharge be remitted without further action.
. I there recognized that we do not have access to appellant’s service record or other allied papers which may bear on suspension and probation.