(concurring):
Among the most vehement complaints against military justice are those which concern the role of the military commander, who has the responsibility for maintaining discipline and yet appoints the court-martial members and reviews the findings and sentence. Congress has made the determination that in this situation a commander may.“carry water on both shoulders.” At the same time, however, by providing that an “accuser” may not convene a special or general court-martial, see Articles 1(9), 22(b), 23(b), Uniform Code of Military Justice, 10 U.S.C. §§ 801(9), 822(b), 823(b), respectively, Congress revealed its intention that, in a case where observers might reasonably conclude that a commander had more than a purely official involvement, he should turn over his responsibilities to a superior commander.
Some judicial interpretations of “accuser” may seem rather extreme. For example, in United States v. Marsh, 3 U.S.C.M.A. 48, 11 C.M.R. 48 (1953), a lieutenant general was deemed to be an “accuser” and therefore disqualified to convene a court-martial to try charges that a private had willfully disobeyed travel orders issued by command of the general. Fortunately, the impact of this holding was reduced by later cases which distinguished willful disobedience from failure to obey. United States v. Teel, 4 U.S.C.M.A. 39, 15 C.M.R. 39 (1954); United States v. Keith, 3 U.S.C.M.A. 579, 13 C.M.R. 135 (1953). However, the Court remained aware that to give a narrow interpretation to “accuser” would fan the criticism of the broad responsibilities Congress has assigned to military commanders.
In the case at bar, the appellant’s flouting of the authority of Major General Fleming was much greater than the disrespect the accused displayed in Marsh for the authority of Lieutenant General Hodge. Indeed, the appellant and his fellow members of the Drum and Bugle Corps were involved in conduct perilously close to mutiny1 —among the most flagrant of military offenses. See Article 94, UCMJ, 10 U.S.C. § 894. Moreover, General Fleming had only a small number of Marines in his command; personal contact occurred between the general and appellant before and after the incident; the general was personally present when the acts occurred which flouted his authority; and the subject matter was one as to which he had a special and personal interest. Under these circumstances — without in any way impugning the motives of this particular commander — I conclude that the results of his post-trial review of the case would inevitably be suspect. There is no need to permit this suspicion to attach.
The only issue before us concerns the post-trial review by the commander, rather than the referral of the charges in the first place.2 However, when the case is reviewed by a different convening authority upon remand, it seems appropriate that the Staff Judge Advocate inquire in some detail into whether this convening authority should have referred the charges and appointed the members.3
*380Obviously it is inconvenient when a case is transferred to another command for review of a conviction — or earlier for the appointment of court members and the referring of charges to trial. However, in most instances the difficulties of transferring the case to some other coordinate command or to a higher echelon of command do not appear overwhelming. Taking such action in borderline cases will blunt at the outset some of the most serious potential criticisms of the military justice system.
. It has been suggested that General Fleming acted with impartiality — indeed, compassion— by not preferring the most serious charges available against Crossley and his co-actors. Even so, in my view, this is insufficient to negate the “personal” rather than purely “official” interest in this unique situation.
. The petition for grant of review was acted on before I came on the Bench.
. The orders of July 25, 1978, appointing the special court-martial members, were issued over General Fleming’s signature as were several amending orders (dated August 7, 18, and 22, as well as four dated August 24). On August 2, 1978, the case was referred to the court-martial convened by “my convening order” of July 25, 1978, but the reference to trial on the charge sheet was signed by Colonel J. M. Rapp, *380whose name had apparently been typed in over General Fleming’s. Colonel Rapp’s position is not explained in the record, but his participation does not call for a difference in outcome.