(dissenting):
The challenge here is to the authority of a general court-martial commander, in the exercise of his general functions as a commander, to overrule a decision by a subordinate commander as to the disposition of a criminal charge against a member of the command. Acknowledging that a superior commander may have “plenary power” over his subordinate commanders when “on the battlefield,” appellate defense counsel contend, and the majority agree, that no such authority exists in regard to a “judicial” act, placed within the competence of a subordinate commander by the Uniform Code. Citing a number of cases, exemplified by United States v. Simpson, 16 U.S.C.M.A. 137, 36 C.M.R. 293 (1966), counsel observe that a decision to refer a case to one of the three kinds of courts-martial provided by the Uniform Code is a “judicial” act, which, within the framework of his premise, is not subject to control by a superior commander.
A military force is hierarchical in nature, with an organizational arrangement and lines of authority calculated to assure a superior commander control over his subordinates. For several reasons, including the long train of abuses of the power of command in regard to courts-martial practices that was witnessed during World War II, Congress, in enacting the UCMJ, imposed curbs on the exercise of command authority in enforcement of the military penal law. The limitations are so crucial to the integrity of the military justice system that an apparent violation “is as much to be condemned as” an actual violation. United States v. Johnson, 14 U.S.C.M.A. 548, 551, 34 C.M.R. 328, 331 (1964). In other words, the appearance of evil is as intolerable as the evil itself. United States v. Hawthorne, 7 U.S.C.M.A. 293, 297, 22 C.M.R. 83, 87 (1956). Still, the limitations are not so pervasive as to expunge all command authority in this field.
In United States v. Gray, 6 U.S.C.M.A. 615, 20 C.M.R. 331 (1956), the Court held the empowerment of a commander, by Article 9 of the Uniform Code, to place a member of his command into confinement for a violation of the Code could properly be curtailed by a superior commander. In United States v. Hawthorne, supra at 299, 22 C.M.R. at 89, while the Court struck down a directive by a division commander to subordinate commanders which had the effect of compelling them to exercise, in a particular way, a discretion granted them by the Uniform Code and the Manual for Courts-Martial, it took care to declare that it had “no disposition to curb . . . [the superior] in the exercise of his powers” as commander. See also United States v. Rembert, 47 C.M.R. 755 (A.C.M.R.1973).
*27Unlike the action of the division commander in Hawthorne, the division commander here did not compel his subordinate to exercise his own discretion as to the disposition of the charges in a particular way. Rather, he asserted his independent authority to make a different disposition than that made by his subordinate. His action, therefore, superseded that of his subordinate, without forcing the latter to reject a judgment he was entitled to make under the Code. The Court commented on a circumstance of this kind in United States v. Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). It indicated that “[cjommand responsibility” is involved when a superior commander overrules the decision of a subordinate as to both dismissal of a charge and in regard to “a decision to withdraw charges that are at trial.” Id. at 93, 35 C.M.R. at 65. I conclude, therefore, that a superior commander has authority to override the decision of a subordinate as to the disposition of a charge against a member of the command and can, as here, direct withdrawal of a charge from a court-martial to which it has been referred for trial by the subordinate. United States v. Thomas, 51 C.M.R. 402, - N.J. - (A.C.M.R.1975).
Still left for consideration is whether the superseding action by the division commander can properly be given effect in the circumstances of this case. The Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 56a, provides that “a specification or case” referred to a court-martial for trial will “[i]n no event . be withdrawn arbitrarily or unfairly to the accused.” As the provision is not contrary to, or inconsistent with, any provision of the Uniform Code, it has the force of law. United States v. Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105 (1962). The language of the provision is mandatory, and there is no differentiation as to the authority who orders the withdrawal.
Nothing has been presented by either the Government or the accused as to the reasons for the decision to withdraw the charges from the special court-martial. Appellate defense counsel suggest that absent an indication in the record of “proper reasons” for the withdrawal it cannot reasonably be concluded that the withdrawal was not arbitrary or unfair. Had the subordinate commander withdrawn the charges on his own initiative, the existence of a proper reason would be presumed. United States v. Lord, 13 U.S.C.M.A. 78, 32 C.M.R. 78 (1962). Compare Manual, supra, paragraph 56d; Petty v. Moriarty, 20 U.S.C.M.A. 438, 43 C.M.R. 278 (1971). Government counsel contend, and I agree, that the same presumption arises in regard to similar action by the superior commander, in the exercise of his independent authority to control disposition of the charges. True, as a result of trial of the charges by a general court-martial the accused had a more severe punishment imposed upon him than could have been adjudged by the special court-martial to which the charges had been originally referred, but that consequential effect of the withdrawal does not itself establish that the reasons for the withdrawal were such that the action was unfair or arbitrary. See United States v. Williams, 11 U.S.C.M.A. 459, 29 C.M.R. 275 (1960).1
Finally, I disagree with the discussion and conclusion in part IV that an improper reference of a charge to a particular court-martial for trial is a jurisdictional defect. United States v. Walsh, 22 U.S.C.M.A. 509, 512, 47 C.M.R. 926, 929 (1973), explicitly rejected that concept; and paragraph 67b of the Manual provides that objections to the reference to trial must be made before plea. I believe those positions are sound, and I would adhere to them.
. In United States v. Jackson, 24 U.S.C.M.A. 57, 51 C.M.R. 186, 1 M.J. 242 (1976), the Court noted that, while the Uniform Code and the Manual do not mandate that a statement of the reasons for withdrawal of charges from a court-martial be included in the record when the withdrawal is effected before the accused is arraigned, as distinguished from the requirement for inclusion when withdrawal is directed after the court is convened, it is “better practice” to make the reasons part of the record, contemporaneously with the withdrawal. As the decision to withdraw is subject to review for arbitrariness and unfairness, timely recording of the reasons can lessen the burden of review.