(concurring in the result):
I disagree with any language in the principal opinion which appears to per se prohibit the appointment of a court-martial panel consisting entirely of senior officers or enlisted servicemembers. The convening authority is required to select as members those who “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25(d)(2), Uniform Code of Military Justice, 10 U.S.C. § 825(d)(2). Based on the statutory selection criteria, the best qualified members in some cases may well be senior officers and enlisted personnel. Indeed, in this case I am convinced beyond any reasonable doubt that the convening authority was sensitive to his statutory duties to appoint members who “in his opinion ... [were] best qualified ...” in accordance with Article 25(d)(2).
I recognize that when a convening authority has systematically excluded a group of otherwise qualified servicepersons from being considered for court-martial membership for an irrational or inappropriate reason, we have found the selection process to be improper. See United States v. Daigle, 1 M.J. 139 (C.M.A.1975) (convening authority did not consider statutory criteria, but only nominees from lower commander); and United States v. Greene, 20 U.S.C.M.A. 232, 43 C.M.R. 72 (1970) (convening authority considered only 0-5s and 0-6s for membership).
The deliberate selection or exclusion of a certain class of servicepersons for the purpose of increasing the severity of the sentence is wrong. A proper concern, however, is the selection of servicepersons who will adjudge a sentence that is fair and just, considering the circumstances of the particular case.
Because of the keen sensitivity shown by the convening authority, we normally would apply the presumption of regularity and assume that the convening authority was aware of his responsibilities and performed them properly. See United States v. Moschella, 20 U.S.C.M.A. 543, 43 C.M.R. 383 (1971). We cannot do that here.
I concur in the result here because the military judge found, as a matter of fact, that the staff judge advocate recommended selection based upon concerns that the sentence might be too lenient. The only concern the staff judge advocate should have had was fairness. Whether the sentence is lenient or harsh is subjective and properly the concern of: (1) the court-martial; and (2) the convening authority exercising clemency — otherwise Congress would have authorized the convening authority to pick those members he thought most likely to award the harshest sentences. If staff judge advocates and convening authorities would carry out their pretrial and post-trial duties in accordance with the law and entrust what happens during the trial to the military judge and the court-martial members, we would not have to resolve allegations of tampering with the outcome of a trial.
If, as the military judge concluded, the staff judge advocate recommended to the convening authority that he give preference to selecting senior officers or enlisted members as a means of avoiding lenient sentences and further advised that sentence enhancement was a permissible consideration when selecting court-martial members, then that advice was in error. In the absence of evidence to the contrary and based upon the military judge’s findings, we can only assume that the convening authority followed this faulty advice.
Thus, there is an unresolved appearance of impropriety in the selection process. Under Daigle and Greene, reversal of the sentence is appropriate to uphold the essential fairness and integrity of the military-justice system. Accordingly, I concur in the result reached by the Chief Judge.