dissenting:
Neither the law nor my conscience would allow me to concur in the principal opinion that the convening authority was not disqualified from acting on this case.
In the military a convening authority may not grant immunity to a prosecution witness who testifies and thereafter reviews or acts upon the case. The reason for the disqualification is that such action renders his impartiality suspect with reference to weighing the testimony of the witness to whom he granted immunity. United States v. Smith, 1 M.J. 83 (C.M.A.1975); United States v. Moffett, 10 U.S.C.M.A. 169, 27 C.M.R. 243 (1959); United States v. White, 10 U.S.C.M.A. 63, 27 C.M.R. 137 (1958). This principle extends to cases in which the convening authority knows that a subordinate commander had made promises of immunity or clemency to a prosecution witness in order to obtain his testimony. The rationale behind the disqualification is that the relationship between the two commanders is such as likewise to preclude the sort of impartial review that the Code requires. Article 64, UCMJ, 10 U.S.C. § 864; United States v. Chavez-Rey, 1 M.J. 34 (C.M.A. 1975); United States v. Cruz, 23 U.S.C.M.A. 238, 49 C.M.R. 291 (1974); United States v. *677Sierra-Albino, 23 U.S.C.M.A. 63, 48 C.M.R. 534 (1974); United States v. Dickerson, 22 U.S.C.M.A. 489, 47 C.M.R. 790 (1973).
The record of trial and allied documents show that pictures depicting Private John T. Moore as a drug user were found in his hold baggage that was to be shipped from Germany to the United States. He was contacted by military criminal investigators and agreed to cooperate with them in the orchestration of a controlled purchase of contraband involving the appellant. After the appellant was apprehended but prior to trial, Private Moore decided that he would prefer to return to the United States for discharge on 1 July 1977 rather than testify against the appellant, his friend. His records were flagged, port call cancelled and charges were preferred against him for drug abuse on unspecified dates. The charges were not related to events surrounding his role in the apprehension of the appellant.
At the trial of the appellant held on 13 July 1977, Private Moore testified that he was told by his battalion commander and the “JAG people” that if he did not testify, they would pursue the charges against him. If he did testify, however, he could “go home tomorrow.” The battalion commander and judge advocates involved deny that such an arrangement was made. They declare that charges against Private Moore were dismissed and he was permitted to depart the day after the trial because his testimony was consistent with his pretrial statement. They also explain that since Private Moore’s testimony did not deepen his involvement in drug activities, there was no need to continue to pursue the preferred charges. Because a witness is protected by the privilege against self-incrimination, their explanation is untenable.
I am convinced by the evidence that the preferral of charges against Private Moore was an administrative strategy to retain him in the command to testify. To conclude otherwise is simply to ignore the facts. In an uncontradicted post-trial affidavit, the trial defense counsel stated that the trial counsel advised him prior to the proceedings that Private Moore was charged only for the purpose of keeping him in Germany as a witness. I condemn this practice in favor of deposing a departing witness to preserve his testimony. The use of a deposition, of course, would depend upon the availability of the witness at the time of trial. Private Moore testified that he would be willing to return to Germany as a civilian witness.
In United States v. Williams, 21 U.S.C.M.A. 292, 45 C.M.R. 66 (1972), it was held that the inaction of a subordinate commander in not preferring charges against a co-actor in exchange for his testimony is tantamount to a grant of immunity. Likewise, in my opinion, the dismissal of charges against a prosecution witness immediately after he testifies in exchange for his testimony has the same practical effect as granting immunity. In the interest of justice, the appearance of evil should be avoided as well as the evil itself. Id. at 298, 45 C.M.R. at 72. This is especially apropos where the Government has engaged in conduct of questionable propriety.
Furthermore, resolution of the question of whether Private Moore in fact had a grant of immunity or only believed it does not detain me because, in either event, the effect upon his credibility is exactly the same. A witness, even when operating upon such a belief alone, might otherwise be tempted to testify falsely in order to maintain his eventual escape from the consequences of his own misconduct. See United States v. Nelson, 23 U.S.C.M.A. 258, 261, 49 C.M.R. 433, 436 (1975).
I disagree with the majority’s conclusion that the convening authority was not disqualified because Private Moore was not a critical witness. The prosecution relied upon the testimony of Private Moore, a military police investigator, a CID agent and a laboratory report to convict the appellant. Private Moore’s testimony concerns his previous drug dealings with the appellant, the total circumstances surrounding the attempts by the appellant to transfer marihuana to him, and the eventual apprehension of the appellant. The mili*678tary police investigator testified about his relationship with Private Moore and the apprehension of the appellant with marihuana in his possession. However, through cross-examination he admitted that he had been relieved from duty pending an investigation of the charge of illegally transferring drugs to Private Moore. The CID agent testified that the appellant verbally admitted possessing marihuana.
True, the appellant admitted possessing marihuana but he raised the issue of entrapment by testifying that Private Moore arranged for one of his German friends to give him a package to deliver to Private Moore. He further testified that he was not aware the package contained marihuana.
I am convinced by the evidence that Private Moore was an essential witness. Apparently, his battalion commander and the trial counsel regarded him a critical witness because he was retained in the Army fourteen days beyond his ETS under questionable circumstances so he would be available to testify. Furthermore, without deciding, I do not believe that the criticality of the testimony of an immune witness determines whether the convening authority is disqualified. Seldom, if ever, is immunity granted to a nonessential witness.
The precise question to consider is whether the convening authority or his subordinate has placed his imprimatur on the witness’ credibility by extending immunity. United States v. Sierra-Albino, 23 U.S.C.M.A. 63, 65, 48 C.M.R. 534, 536 (1974). If so, he is disqualified as in this case. Therefore, a new review and action are necessary.