(dissenting):
I dissent. I would rule for the Government and with the court below. A Deputy Assistant Secretary of the Army cannot void a federal conviction 4 months after it has been adjudged by a court-martial. The majority’s position creates in effect a pardon power not authorized by statutory law or the Constitution.
The pardon power is established in Art. II, § 2 of the Constitution. However, there has been no exercise of this power by the President, either directly or by delegation in this case. See 28 CFR § 1.1. Moreover, Congress might create a similar mechanism whereby the Secretary could be authorized by law to void a conviction in a case such as this. U.S. Const., Art. I, § 8, cl. 14. *376However, it chose not to bestow such power. Instead, Congress provided that a Secretary, an Under Secretary, or Assistant Secretary may commute, remit, or suspend the sentence only. Arts. 71 and 74, Uniform Code of Military Justice, 10 U.S.C. § 871 and § 874, respectively. There was no power given to them to void the conviction once the sentence was published and the judicial appellate review begun. Cf Art. 64, UCMJ, 10 U.S.C. § 864.
The majority finds support for its position in United States v. Gwaltney, 20 U.S.C.M.A. 488, 43 C.M.R. 328 (1971). Its reliance is misplaced in the instant case. Both the majority and the dissent in Gwaltney based their decision “to do justice” on the special factfinding power of the Court of Military Review and the fact that the Court of Military Review found an agreement between the Secretary and the accused. Here, there is no finding of such a fact. The Court of Military Review instead found that “a promise did not exist” and therefore there was no agreement between appellant and the Secretary of the Army. 21 M.J. 856, 876. Thus, Gwaltney is not applicable to this case.
Again, Congress could change the law and give the Secretary the power to void a conviction. U.S. Const., Art. I, § 8, cl. 14. Otherwise, I believe that an administrative act cannot void a Federal conviction unless authorized by the Constitution or Federal law. A German citizen was killed by appellant. There was a conviction of drunk and reckless driving and of involuntary manslaughter in a court-martial pursuant to due process of law. To wipe out such a conviction by an administrative, and not judicial, act erodes respect for the judicial process.* I agree with the conclusions of the well-reasoned opinion of the Court of Military Review in this case. I would rule for the Government, affirm the convictions, and let the Secretary take what clemency actions he wants under the law.
Due-process concerns with respect to the handling of this administrative request for discharge have not been properly developed on the record before us and, in my opinion, are beyond the scope of the particular issue granted review in this case.