(concurring in the result):
The case before this court is an example of a dilemma facing convening authorities. Paragraph 85c, Manual for Courts-Martial, 1969, and United States v. Keller, 1 M.J. 159 (C.M.A.1978), require a convening authority to forward a statement that explains why the convening authority took an action that differed from the recommendation of the convening authority’s staff judge advocate. In many cases, the convening authority’s action will be based on a simple disagreement as to what is appropriate in a given case. A convening authority will have a different gut feeling or make a different judgment call than the staff judge advocate. In many cases, a convening authority will simply believe that the offenses in a particular case are serious and that the action recommended by the staff judge advocate is either inappropriate or would result in insufficient punishment for the particular case. The difficulty facing the convening authority is how to state this, without falling into traps that have been established by the case law. The Court of Military Appeals in United States v. Harris, 10 M.J. 276 (C.M.A.1981), has held that the simple statement “in view of the seriousness of the offenses” is inadequate to satisfy the explanation required by Keller. Further, the convening authority must also be careful that he does not base his reasoning upon an inelastic view of the appropriate punishment for a particular crime.
In the case before this court, the convening authority conducted a thorough review of the record. He modified the sentence adjudged but did not go as far as the recommendation of the staff judge advocate, because he felt that separation from the service was the appropriate sentence, notwithstanding the extenuation and mitigating circumstances that had been presented.
By trying to avoid the Harris trap the convening authority may have fallen into the trap established in United States v. Lacey, 23 U.S.C. 334, 49 C.M.R. 738 (C.M.A.1975). The convening authority expressed the view that anyone who commits the particular crimes committed by the appellant should be separated from the service. The language used by the convening authority suggests that the convening au*838thority had an inelastic attitude on the appropriate punishment for individuals who commit these specific crimes.
The Court of Military Appeals in Lacey held that an accused is entitled to a careful and individualized review of the sentence by the convening authority. In cases where the convening authority has adopted a fixed policy or any inelastic attitude toward the exercise of this discretion in affirming, modifying, or suspending a sentence, the Court will find that the convening authority has not complied with the Code. In the Lacey case, the convening authority stated that:
“[l]arceny, a crime involving moral turpitude, is so prejudicial to good order and discipline that the risk of recurrence strongly dictates removal from the U.S. Navy immediately. Accordingly, the bad conduct discharge is approved without suspension.”
In this case, the convening authority stated that
“... The accused’s acts are simply not acceptable for members of the United States Coast Guard, regardless of the substantial otherwise good character evidence adduced in this case.
Members who wrongfully enter seized vessels, steal therefrom, and possess substantial quantities of marijuana with intent to distribute (and do in fact distribute) it to other members in the Coast Guard, simply cannot be retained in the service.”
At issue is whether by making this statement the convening authority has expressed an inelastic view towards the type of sentence that is appropriate to these offenses. On its face, the language used by the convening authority in this case is very close to the language used by the convening authority in Lacey.
It has been argued that Lacey is inapplicable to this case, since Lacey dealt with the fairly simple, generic offense of larceny and this case involved a very limited and unique set of offenses. However, the offenses committed by the appellant are not unknown in today’s Coast Guard. There are in fact six cases pending or recently decided by this court and eight cases before the Chief Counsel for review under Article 69, 10 U.S.C. § 869, in which the offenses involve the stealing or attempt to steal contraband from seized vessels for subsequent sale or distribution. The language used by the convening authority in Lacey and this case is too similar to be distinguished simply because one case involved a complicated but not unique set of circumstances.
However, I am reluctant to dissent from the principal decision in this case, since I agree that the convening authority did in fact, conduct a personalized review of appellant’s case, notwithstanding his expression of strong feeling on the appropriate sentence for the offenses. I agree with the convening authority that the offenses committed by the appellant were very serious and the sentence approved by the convening authority is appropriate for these offenses, notwithstanding the extensive evidence presented in extenuation and mitigation.
I do not believe that a convening authority should be held to a unrealistic standard of penmanship, under which the unfortunate choice of a few words results in the need for this court to refer a record to another convening authority for action.
Since there is nothing in the record that indicates that the convening authority had any preconceived attitude toward the appropriate sentence for this case, I believe it is reasonable to take the position that the convening authority’s attitude on the appropriate sentence for these offenses resulted from his review of the record in this case. Therefore, I concur in the result reached in the principal decision.
However, I am concerned that the strong statement used by the convening authority in this case could arguably lead to the application of Lacey in other cases involving these offenses that are acted upon by the convening authority subsequent to the date of the convening authority’s action in this case.