(dissenting):
I could rest my dissent on the separate opinions that I filed in Courtney v. Williams, 1 M.J. 267, 272 (C.M.A.1976), Phillippy v. McLucas, 23 U.S.C.M.A. 709, 710, 50 C.M.R. 915, 916 (1975), and Porter v. Richardson, 23 U.S.C.M.A. 704, 50 C.M.R. 910 (1975). However, today the majority go beyond those cases to hold that a convening authority and his staff judge advocate are inherently disqualified to conduct a hearing to determine whether an accused should be placed in pretrial confinement.
Only two years ago, the Court held that the normal command responsibilities of a commanding officer do not of themselves, inculcate in him a state of mind antithetical to the requirement of impartiality and neutrality for authorization of a search. United States v. Ezell, 6 M.J. 307, 330 (C.M.A.1979). The Court reaffirmed that view in United States v. Middleton, 10 M.J. 123 (C.M.A.1981). I discern no justification for a different rule when the commander exercises his authority under Article 9, Uniform Code of Military Justice, 10 U.S.C. § 809, to determine that an accused should be in pretrial confinement.
Earlier, I expressed my disagreement with the perception of the pretrial functions of the staff judge advocate as prosecutorial in nature. See my separate opinions in United States v. Hardin, 7 M.J. 399, 405 (C.M.A.1979); United States v. Cansdale, 7 M.J. 143, 149 (C.M.A.1979); United States v. Malia, 6 M.J. 65, 68 (C.M.A.1978). I adhere to that view, and disagree with the present declaration that the staff judge advocate is per se disqualified from acting as a hearing officer at a pretrial detention proceeding.
Lastly, I reject the implication in the principal opinion that the Air Force must conform its pretrial detention proceedings with those of the other services because the latter appeals more to the Court. The Uniform Code does not mandate a particular proceeding; the Manual for Courts-Martial does not mandate a particular proceeding; and I am certain the Constitution does not require a particular proceeding. See United States v. Hoesing, 5 M.J. 355 (C.M.A.1978).
To accept the basic premise of the majority would lead to the conclusion that the staff judge advocate is disqualified to produce the post-trial review since he would, in effect, be “called upon to condemn or countenance . . . [his] own workmanship.” United States v. Renton, 8 U.S.C.M.A. 697, 701, 25 C.M.R. 201, 205 (1958). Similar rea*399soiling would also disqualify the convening or supervisory authority from taking action on the case. Yet both of these functions are required by the Code. See Articles 60 and 61, UCMJ, 10 U.S.C. §§ 860 and 861, respectively. To me the Articles establish a Congressional recognition of the ability of these officers to perform both prosecutorial and judicial functions, as required, in the pretrial processing of charges. See H.R. Rep. No. 491, 81st Cong., 1st Sess. at 29 (1949); S.Rep. No. 486, 81st Cong., 1st Sess. at 26 (1949). I find no inherent illegality in allowing the officer who must make the final decision that there is probable cause to refer charges to trial to also decide that there is probable cause to retain the accused in pretrial confinement. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); United States v. Roberts, 7 U.S.C.M.A. 322, 22 C.M.R. 112 (1956). These determinations are both judicial decisions, though only the former is specifically recognized by the Code. Instead the majority rejects the Air Force procedure without any finding of unfairness and adopts a concept that is diametrically opposed to the overall intention of Congress to retain the commander as an integral part of the military disciplinary system. In so doing, they are taking yet another step away from the basic premise that underlies our own enabling statute — the Uniform Code of Military Justice.
I would affirm the decision of the United States Air Force Court of Military Review.