concurring:
Our decision relative to the disqualification of the Commander, Strategic Air Command, to review this case represents, in my opinion, a logical extension of recent case decisions wherein disqualification was determined solely on the vertical command relationship of the officials involved. United States v. Dickerson, 22 U.S.C.M.A. 489, 47 C.M.R. 790 (1973); United States v. Sierra-Albino, 23 U.S.C.M.A. 63, 48 C.M.R. 534 (1974); United States v. Chavez-Rey, 23 U.S.C.M.A. 412, 50 C.M.R. 294, 1 M.J. 34 (1975) . It would appear, however, that this conclusion is contrary to the following provision of paragraph 84c, Manual for Courts-Martial, 1969 (Rev), which was complied with to the letter in the case before us:
[I]f the person who normally would take action as convening authority is disqualified, as when he has granted immunity to a witness for the prosecution . the normal convening authority will forward the record of trial — ordinarily through the chain of command — to an officer authorized to exercise general court-martial jurisdiction.
Nevertheless, to be effective, a Manual provision dealing with a procedural question must not conflict with other law or military justice principles. United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970); cf. United States v. Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105 (1962). Utilizing this test as guidance, I find that the legal principle enunciated in United States v. Sierra-Albino, supra, as follows, prevails:
Whenever a convening authority learns a subordinate has vouched for the credibility of a witness by extending immunity, it is still asking too much of the convening authority to free himself wholly of the influence of his subordinate’s judgment in his own review and action upon the case.