(concurring in the result):
I believe the most important assertion in the principal opinion is that a “special court-martial convening authority need not decide the issue of the legality of . [a] search before he takes his action upon the record.” In my opinion, that limitation on the responsibility of a special court-martial convening authority is contrary to the Uniform Code of Military Justice and our cases.
*150Article 601 directs that after trial the record of a court-martial “shall be forwarded to the convening authority” for action. Article 64 2 defines the nature of the action to be taken by the convening authority. It does not differentiate between a general court-martial authority and a special court-martial authority, or even a summary court-martial authority. In material part, Article 64 provides that “the convening authority may approve only such findings of guilty . . . as he finds correct in law and fact” (Emphasis supplied.) A statute “plain on its face” must “be applied, not interpreted.” United States v. Cunningham, 21 U.S.C.M.A. 144, 145, 44 C.M.R. 198, 199 (1971).
In a case decided at its first term, this Court observed that the Uniform Code could not be effectuated unless “officers concerned with ordering, conducting and reviewing courts-martial observe scrupulously their duties and responsibilities under the Code and the Manual [for Courts-Martial].” United States v. James, 1 U.S.C.M.A. 379, 381, 3 C.M.R. 113, 115 (1952). How can a special court-martial convening authority affirm a finding of guilty as correct in law unless he is satisfied that the evidence establishing guilt was legally before the court-martial? Paragraph 87, Manual for Courts-Martial, United States, 1969 (Revised edition), expressly reminds every convening authority that he must consider the “legality of a finding of guilty”; under that admonition the Manual notes that the convening authority must consider not only the legal sufficiency of the evidence, but also whether the evidence is “competent,” a legal matter determined by the rules prescribed by the President in the Manual for Courts-Martial, as authorized by Article 36.3 To say, therefore, as my Brothers do, that a special court-martial convening authority “need not decide the issue of the legality of [a] search” challenged at trial because such action “is inconsistent with the stature which Congress gave to the military judge” is just not true. Effectively, the assertion reads Article 64 out of the Uniform Code as regards a special court-martial convening authority. I cannot subscribe to such judicial emasculation of the command of Congress.4
In United States v. McElwee, 16 U.S.C.M.A. 586, 37 C.M.R. 206 (1967), the accused was tried by special court-martial. At trial, he raised a procedural question affecting the admissibility of his pretrial confession. The president of the court ruled against him. Thereafter, the special court-martial authority affirmed the conviction, and forwarded the record to the supervisory authority for further review, as provided by Article 65(b).5 The supervisory authority decided that the issue “ ‘should be raised before and discussed by the Coast Guard’s Board of Review’ ” as speedily as possible so that it could be “ ‘precedent.’ ” ' Id. at 587, 37 C.M.R. at 207. Consequently, without acting on the record, he forwarded it “ ‘for direct review’ ” by the Coast Guard Board of Review. A unanimous court held that the accused had been improperly deprived *151of his statutory right to review by a supervisory authority. In my opinion, my Brothers’ determination that direct review of the case of the accused now before us by a Court of Military Review is an allowable “alternative” to his right, under Articles 60 and 64, to review by the convening authority is contrary to McElwee.6 I believe McElwee is more faithful to the Uniform Code than are my Brothers.
If a ruling at trial admitting evidence adverse to the accused is legally incorrect, I believe the accused is entitled to have that ruling set aside and its impact on the verdict of guilty assessed as soon as possible. Congress said that should be accomplished at the trial level. I do not believe this Court can direct postponement of decision until the matter reaches the Court of Military Review, if the case is one reviewable by it, or it reaches the Judge Advocate General of the accused’s armed force, if the case is one reviewable by him under Article 697, or the case comes before a judge advocate for review, as provided by Article 65(c).8 I, therefore, disagree completely with the justification presented by my Brothers for affirming the convening authority’s action. My reasons for affirming follow.
As the principal opinion points out, “the convening authority’s appearance as a witness did not disqualify him” from reviewing the accused’s record. Consequently, disqualification must rest upon the fact that, at trial, the accused attacked the legal correctness of the convening authority’s issuance of the authorization to search which produced evidence used against him.
My Brothers acknowledge civilian cases indicating that issuance of a search warrant by a judge does not disqualify him from presiding later at the trial on the ground that he is “required to pass on the validity of his own” previous act. These cases are a particularization of the general rule in the civilian courts that a judge’s prior disposition of a preliminary matter in a case does not disqualify him from later acting in the case “on the merits.” 48 C.J.S. Judges § 83 d. My Brothers, however, represent that the Court’s endorsement in United States v. Wolzok, 1 M.J. 125, 128 (C.M.A.1975), of the opinion of the United States Army Court of Military Review in United States v. Cardwell, 46 C.M.R. 1301 (1973), established for the military “that a military judge who granted authority to search is disqualified from presiding where a search warrant issued by him is admitted in evidence during a search contest, since at that point he becomes a witness for the prosecution.” I do not read the Cardwell opinion to support that interpretation of it.
The Court of Military Review did indeed say that introduction into evidence of a search warrant, with a writing reciting the facts presented to the judge, constituted the judge a witness at the trial and he should have disqualified himself. Id. at 1305. However, as I read the opinion at the time of Wolzok and reread now, that statement impressed me as an incidental dictum. The admission into evidence of the judge’s search warrant was not alone disqualifying. What was disqualifying was the fact he testified as a witness and his testimony went far beyond recital of the information presented to him on the application for the warrant. That additional testimony “improved the record of trial on the question of existence of probable cause to issue a warrant.” Id. at 1304. That the latter circum*152stance was a necessary element of the court’s determination of disqualification appears from the following statement in the opinion:
The judicial process is a delicate device which places the military judge at the fulcrum of the scales of justice. To allow him to review the correctness of his prior conduct and to supply additional information at trial in support of his issuance of the warrant by testifying, either in person or by affidavit, places too heavy a burden upon him. [Id. at 1305.]
In my opinion, the rule applicable in the federal civilian courts, exemplified by United States v. Garramone, 374 F.Supp. 256 (D.Pa.1974), aff’d., 506 F.2d 1053 (3d Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975), which is cited in the principal opinion, is not inconsistent with the Uniform Code of Military Justice, the Manual for Courts-Martial, and our previous decisions, and is, therefore, appropriate for the military courts. Under that rule, a military judge who issues a search warrant is not thereby disqualified from acting as a judge in later proceedings in the case, including the trial.
My Brothers have elected not to clarify our Wolzok opinion, but to declare it inapplicable to a convening authority. They further assert that in acting on a record of trial, a special court-martial convening authority “primarily exercises a command function,” implying that he does not act as a judge reviewing a case for legal error. To me, the primary function of the convening authority in reviewing a conviction, as required by Article 64, UCMJ, is judicial in nature. See also Article 62(b), UCMJ, 10 U.S.C. § 862(b); para. 86b, Manual, supra.
Only a few months ago, this Court held that in issuing a search warrant, a military commander acts as a “neutral and detached magistrate,” as is constitutionally required. United States v. Ezell, 6 M.J. 307 (C.M.A.1979). The Court has also held that other actions taken by a convening authority in a court-martial proceeding are “judicial” in nature. As early as United States v. Sonnenschein, 1 U.S.C.M.A. 64, 71, 1 C.M.R. 64, 71 (1951), the Court observed that the convening authority’s functions in reviewing a court-martial record are “hybrid,” with major responsibilities “[s]ounding ... in appellate review.” In Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 137, 48 C.M.R. 751, 753 (1974), the Court remarked that certain of the convening authority’s review powers “are . associated with appellate review,” while others “have the attributes of [those of] a trial court.9
Congress has decreed for the civilian courts that “[n]o judge shall hear or determine an appeal from the decision of a case or issue tried by him.” 28 U.S.C. § 47; Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 135, 136 (4th Cir. 1970) (Craven, Cir. J.). This Court recognized the applicability of the concept to a convening authority and held that a commander who “acted [on the record] as a special court-martial convening authority was thereafter ineligible to act as supervisory authority upon the same case.” United States v. McGary, 9 U.S.C.M.A. 244, 248, 26 C.M.R. 24, 28 (1958).
I have no doubt that a special court-martial convening authority must consider the admissibility of evidence challenged by the accused at trial, and that function is judicial in nature. That review is not of his own pretrial ruling, but the ruling of the trial judge. From that standpoint, he is not directly passing upon the validity of his own act. Cf. United States v. McGary, supra. Assuredly, his previous determination of probable cause for issuance of an authorization to search is directly involved, but that previous preliminary activity is not, as noted earlier, a disqualification to final decision on the merits. United States v. Garramone, supra,
*153In United States v. Conn, 6 M.J. 351 (C.M.A.1979), this Court held that a convening authority is not disqualified to refer a case to trial because he had previously ordered the accused’s arrest. In United States v. Bunting, 4 U.S.C.M.A. 84, 87, 15 C.M.R. 84, 87 (1954), and in United States v. Greenwalt, 6 U.S.C.M.A. 569, 573, 20 C.M.R. 285, 289 (1955), the Court held that reference of a charge to trial “requires the exercise of a judicial judgment.” If a pretrial determination of probable cause for arrest, which may involve the admissibility of evidence discovered incident to the arrest, does not disqualify in this judicial function, it is equally not disqualifying in regard to the judicial function of review of the record of trial. In rejecting as “almost frivolous” a defense claim that the trial judge should have disqualified himself because he had ruled against the defense in an earlier appearance before him, the Fifth Circuit Court of Appeals made an observation that can appropriately be noted here, with interlineation to apply it to military practice: “Our judicial system does not provide for no-deposit/no-return . . . [convening authorities], disposable after one use.” United States v. Harris, 458 F.2d 670, 678 (5 Cir. 1972), cert. denied sub nom. Scott v. United States, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972).
For the reasons stated, I join in affirming the decision of the Court of Military Review.
. Uniform Code of Military Justice, 10 U.S.C. § 860.
. UCMJ, 10 U.S.C. § 864.
. UCMJ, 10 U.S.C. § 836.
. As my Brothers appear to attach importance to the fact that a convening authority is likely to be a “nonlawyer” and the trial judge will be a lawyer, their logic would apply equally to a general court-martial convening authority. In fact, our opinion in United States v. Brewer, 1 M.J. 233, 234 (C.M.A.1975), might even require that result in a case like the one now before us. There, the Court said that an “identity of function” exists as regards a convening authority who has no general court-martial power and a general court-martial authority who acts as the “supervisory” authority. See Article 65(b), UCMJ, 10 U.S.C. § 865(b). Further, a special court-martial may be constituted without a military judge. See Articles 16(2)(A) and 19, UCMJ, 10 U.S.C. §§ 816(2)(A) and 819. In such case, would the convening authority be required to review the legal issues presented by the record? . Predication of scope of responsibility upon the happenstance of the presence or absence of a military judge on the court-martial is plainly contrary to the unqualified language of Article 64, UCMJ.
. UCMJ, 10 U.S.C. § 865(b).
. In my separate opinion in United States v. Payne, 3 M.J. 354, 358, 360 (C.M.A.1977), I indicated that an Article 32 investigating officer need not inquire into the admissibility of evidence obtained in a search. However, the stress my Brothers placed upon a discussion of “the legality of the search” by the investigating officer and trial counsel as a factor bearing on the qualification of the investigating officer to serve suggested they believed an investigating officer should consider the admissibility of evidence at trial. Id. at 355 n. 4. If that sort of inquiry is proper at the investigative stage of a court-martial proceeding, I am unable to see how my Brothers can now declare that it is an inappropriate inquiry for a convening authority reviewing a record of conviction, as required by Articles 60 and 64, UCMJ.
. UCMJ, 10 U.S.C. § 869.
. UCMJ, 10 U.S.C. § 865(c).
. My Brothers have repudiated the rule for speedy disposition of charges propounded in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974). They have not denied the judicial nature of all the convening authority’s responsibilities in acting on a record of trial. See United States v. Banks, 7 M.J. 92 (C.M.A.1979).