(dissenting):
Footnoting, without revisiting, the legislative history of article 67(bX2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2),1 I pass, as the crow flies, to the question posited with this Court by the Judge Advocate General of the Navy, namely:
*458Was the United States Navy Court of Military Review correct as a matter of law in its determination that the pleas of guilty were improvident because the military judge did not fully explain the meaning of deferment (and how deferment differs from suspension and remission) where such deficiency has been remedied by the convening authority’s supplemental action ordering that all unexecuted confinement at hard labor be remitted?
(Emphasis added.) The question should be answered in the affirmative.
A more detailed procedural history of this case than that provided by the majority is necessary to illuminate the reasons for my conclusion. On April 9, 1980, the United States Navy Court of Military Review determined that the pleas of guilty in this case were improvident, and that court set aside the findings of guilty and the sentence and authorized a rehearing. United States v. Kraffa, 9 M.J. 643 (N.C.M.R.1980); see Article 66(c) and (d), UCMJ, 10 U.S.C. § 866(c) and (d). The Judge Advocate General at that time did not certify this decision to the Court under Article 67(b)(2). Instead, on April 15, 1980, and in accordance with Article 66(e), UCMJ, 10 U.S.C. § 866(e), the Judge Advocate General sent a letter of instruction to the general court-martial convening authority informing him of the above order of the Court of Military Review and of his duty to take action not inconsistent with it. In particular, the letter of the Judge Advocate General stated:
By decision of the U. S. Navy Court of Military Review dated 9 April 1980, the findings of guilty have been set aside. A rehearing is authorized.
******
If you ... determine that a rehearing is impracticable, an appropriate action should be prepared dismissing the charge(s) and restoring all rights, privileges and property to the accused.
Later, on April 21, 1980, government counsel in this case requested the Court of Military Review to grant an enlargement of time to file a motion for reconsideration of its decision. See Rules 19(b) and (c), and 22, Courts of Military Review Rules of Practice and Procedure, 3 M.J. CI, CII. On April 30, 1980, that court granted this motion. Subsequently, on May 1, 1980, the convening authority, Commanding General, 1st Marine Division (Rein), FMF, Camp Pendleton, California, issued a supplementary court-martial order in the case purporting to remit the unexecuted portion of confinement. Article 74, UCMJ, 10 U.S.C. § 874. Service of this confinement had been originally deferred by the convening authority in his previous actions in this case. Article 57(d), UCMJ, 10 U.S.C. § 857(d).
On May 5, 1980, the Government filed its petition for reconsideration and a copy of the convening authority’s supplemental action with the Court of Military Review. This petition for reconsideration and the earlier motion for enlargement of time are not included in the papers before this Court. In any event, the Court of Military Review denied the petition for reconsideration on May 13, 1980. The Judge Advocate General, as indicated above, certified this case for our review on May 30, 1980.
The majority opinion states that the issue to be decided is “whether the remission” action taken by the convening authority after the publication of the lower court’s opinion “required a different disposition of the Government's motion for reconsideration.” The majority opines that if the lower court resolved this issue on the basis that the accused misunderstood a term of the agreement which cannot now prejudice him, the denial of the reconsideration motion was improper. This presumes that the convening authority’s supplemental action was lawful. I disagree with such a short-sighted analysis of this question and the disrespect it engenders for both the Court of Military Review and the Judge Advocate General.
My first observation is that the findings of guilty and the sentence were already set aside before the convening authority attempted to remit the unexecuted portion of confinement. Article 66(d) provides that *459the Court of Military Review can set aside findings of guilty and the sentence. That court’s rules,2 however, do not provide for a period of time before its decisions become effective by mandate (cf. Rule 45, Court of Military Appeals Rules of Practice and Procedure, 4 M.J. CXXI), nor do they provide for an automatic stay of their orders by filing a petition for reconsideration. See Fed.R.App.P. 41. In any event, the Judge Advocate General had already instructed the convening authority to comply with the Court of Military Review’s action before the Government’s time-enlargement motion was filed in this case. See United States v. Tanner, 3 M.J. 924 (A.C.M.R.1977), pet. denied, 4 M.J. 169 (C.M.A.1977). Under these circumstances, the findings of guilty and the sentence were effectively set aside not only before the convening authority acted but also before the Government submitted its time-enlargement motion. See Enzor v. United States, 42 C.M.R. 699 (A.C.M.R. 1970), pet. denied by opinion, 20 U.S.C.M.A. 257, 43 C.M.R. 97 (1971). T convening authority was not authorized by any statute or by the Court of Military Review to withdraw the April 9, 1980, decision in order to revive the trial court’s sentence and exercise his remission powers. See United States v. Brandt, 3 M.J. 959 (N.C.M.R.1977). In view of this clean slate, there were no findings of guilty or sentence for the convening authority to approve under Article 64,10 U.S.C.A. § 864, or remit under Article 74. Accordingly, his particular supplemental action was unlawful. See Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887).
The majority’s reliance on United States v. Sparks, 5 U.S.C.M.A. 453, 18 C.M.R. 77 (1955), to support a contrary conclusion in the present case is sorely misplaced. There, a Board of Review affirmed findings of guilty and the sentence. The Judge Advocate General transmitted this decision to the officer exercising general court-martial jurisdiction over the accused for service of that decision on the accused in accordance with paragraph 100c, Manual for Courts-Martial, United States, 1951. In view of the accused’s right to petition this Court under Article 67(b)(3), neither this officer nor the convening authority could take any other action on the case for thirty days. Id. This Court held that such transmittal action did not amount to a mandate terminating the lower court’s jurisdiction to entertain a petition for reconsideration from the accused because no immediate action by the officer exercising general court-martial jurisdiction was contemplated, save serving the accused with a copy of the decision. United States v. Sparks, supra at 458, 18 C.M.R. at 82.
The present case is significantly different. Here, the Court of Military Review set aside the findings of guilty and the sentence and the Judge Advocate General transmitted this decision to the convening authority to take action in accordance with it. Article 66(e). The action contemplated was ordering a rehearing or dismissal of the outstanding criminal charges, not notification of the accused as in the Sparks case. See Appendix 15 b, Manual for Courts-Martial, United States, 1969 (Revised edition). Paragraph 100b of the 1969 Manual, which explains this action, does not authorize a thirty-day waiting period before the convening authority may act, as did paragraph 100c of the 1951 Manual, the operative provision in the Sparks case. Moreover, neither paragraph 100b, supra, JAGMAN 0133, nor the intermediate appellate court’s rules provide for service of the accused with such a decision. Accordingly, immediate action to implement the decision was demanded from the convening authority, and this order can be considered tantamount to a mandate in the absence of a particular rule of the court to the contrary. See United States v. Sell, 3 U.S.C.M.A. 202, 205, 11 C.M.R. 202, 205 (1953), citing United States v. Reeves, 1 U.S.C.M.A. 388, 3 C.M.R. 122 (1952). Even assuming that JAGMAN 124a (3) would lawfully permit the convening *460authority thirty days to take this action, such a supplementary court-martial order is not necessary to the validity of the decisions of the appellate court and the Judge Advocate General. See para. 90 of the 1969 Manual.
My second point of consternation is that the convening authority’s action did not comply with the orders of the lower appellate court or the Judge Advocate General. See generally Dilley v. Alexander, 627 F.2d 407 (D.C. Cir. 1980); City of Cleveland, Ohio v. Federal Power Commission, 561 F.2d 344 (D.C. Cir. 1977). They expressly ordered a rehearing on findings and sentence, or dismissal of the charges. The subsequent action of the convening authority ignored these lawful options. Instead, he unilaterally 3 decided to provide his own relief under Article 74. The Navy Court of Military Review is clearly authorized to determine whether its orders have been complied with and take appropriate action in the case of noncompliance. See United States v. Hawkins, 11 M.J. 4, 6 (C.M.A. 1981). Again, the convening authority’s supplemental action was unlawful.
In view of the above, there were sound legal grounds for the Court of Military Review to deny this reconsideration petition. It clearly could have reasoned that the supplemental action of the convening authority was ineffective to alter the status quo of the case it recently decided. See United States v. Sparks, supra at 459, 18 C.M.R. at 83. The majority opinion in this case demonstrates once again the recent proclivity of the majority of this Court to undermine the authority of and respect for the military courts empowered by Congress to act within the military community. What the majority did to the trial bench in United States v. Redding, 11 M.J. 100 (C.M.A. 1981),4 it does now to the intermediate military appellate court, thus compounding its felony.
I dissent.5
. United States v. Redding, 11 M.J. 100, 113 (C.M.A.1981), (Fletcher, J., dissenting), and that dissent’s stepchildren.
. This is the responsibility of the Judge Advocates General under Article 66(f), Uniform Code of Military Justice, 10 U.S.C. § 866(f).
. The papers concerning the Government’s motion for enlargement and its petition for reconsideration before the lower court are not before us. Appellee’s counsel in his brief before this Court alleged, based on these papers, that the government counsel was in communication with this convening authority after the issuance of the lower court order and prior to the subsequent remission action. See United States v. Sell, 3 U.S.C.M.A. 202, 205, 11 C.M.R. 202, 205 (1953).
. See my dissenting opinion in United States v. Redding at 118 (footnote omitted), where I stated:
These congressional enactments to my mind do not anticipate that the military judge shall stand powerless in the face of the deliberate refusal of military authorities to comply with his decisions and rulings.
. In United States v. Robertson, 17 U.S.C.M.A. 604, 38 C.M.R. 402 (1968), the Judge Advocate General withheld action to direct a rehearing as authorized by the Board of Review decision. In Thorpe v. Housing Authority, 386 U.S. 670, 87 S.Ct. 1244, 18 L.Ed.2d 394 (1967), it was expressly noted that the Supreme Court of North Carolina had granted a stay of its order while application for certiorari was made to the Supreme Court. See Thorpe v. Housing Authority, 393 U.S. 268, 285, 89 S.Ct. 518, 528, 21 L.Ed.2d 474 (1969) (Black, J., concurring). In the present case, the Judge Advocate General took action and the Court of Military Review did not issue a stay of its order.