concurring in result:
For several reasons I find it insufficient merely to join in the result of the decision here. The first is that the proposal favored by half the sitting court holds out a renewed offer to litigants which might be misunderstood if some specific objection were not voiced now. The proposal would *1291lay down a rule for future conduct of reviewing authorities under pain of this Court’s disapproval of sentences.
The regulation promulgated by the Chief Counsel and referred to as if of significance to the proposal is irrelevant. Assuming that there is a valid regulation governing the processing of court-martial records, the absence of an apparent sanction cannot be interpreted as an invitation or authorization to this Court to establish sanctions. The Chief Counsel cannot, of course, enlarge the statutory authority of the Court and just as his administrative management purposes in providing deadlines of sorts for certain actions by supervisory authorities may be multiple and are unknown so his means of enforcing his requirements are inscrutable. It is not for this Court to speculate or to pronounce judgment on the administrative considerations of means and ends.
The function of this Court is to perform the duties imposed on it by Article 66 (10 U.S.C. 866). With respect to findings and sentences it is to approve “only” what it “finds correct in law and fact and determines, on the basis of the entire record, should be approved.” It has done that in this case, unanimously, and may go no further in prescribing new rules for other cases yet untried or unheard. Insofar as the Court of Military Appeals has such authority its dictates become, of course, “the law” by which this Court judges the record before it; osmosis does not transfer that rule making power to this Court.
If some concept of “activism” (as per se desirable) can be thought to justify ultra vires action, the lesson in the “Hurlburt ” case should be a deterrent anyway. United States v. Hurlburt, A.C.M. S242256, 51 C.M.R. 599, 1 M.J. 742, applied, in the Air Force, the “Dunlap” rule to supervisory authorities. The decision was reversed by the Court of Military Appeals (citation not available, but see United States v. Hurlburt, 51 C.M.R. 789, 1 M.J. 797), which, in the interim, had itself made the rule for supervisory authorities in United States v. Brewer, 24 U.S.C.M.A. 47, 51 C.M.R. 141, 1 M.J. 233. Further, such “activism” by a Court of Military Review is antithetical to the codified purpose of uniformity, for which great concern was recently expressed in McPhail v. United States, Misc. 75-22, U.S.C.M.A., 1 M.J. 457, Aug. 27, 1976.
Apart from the “argument” here, I note that when the proponents consider such matters as ineligibility for promotion or transfer, and the like, as motivating establishment of a rule for future cases they are encroaching on policy considerations within the province of the administrator. If there are evils to be corrected there are remedies in the powers of the personnel administrators and they are not to be dealt with in well-intentioned but ill-founded quasi-judicial pronouncements. Still apart, I am not sure that I understand the rule proposed or that I would even if it were uttered in this form by the Coast of Military Appeals. It involves a specified period of time. If this is exceeded there must be “adequate” explanation. (No guide is offered.) If the time is not adequately explained, then a presumption of prejudice arises. I take it, however, that this presumption is rebut-table by a showing that no actual prejudice attached. If, after all this, there is found actual prejudice, the sentence will be disapproved. This is not a rule in the true sense at all. It is a formulation for the sake of form of a practice already followed by this Court in certain ad hoc determinations that prejudice occurred because of undue delay in review necessitating disapproval of certain types of sentence. Determinations under “the rule” would still have to be made on a case by case basis, as now, on the whole record before the Court under Article 66.
I repeat, however, that the statutory directive to this Court to act on the findings and sentence of this case, on the entire record of this case, does not warrant rule-making for cases not yet tried or seen or heard or properly before the Court for action.