(concurring in the result):
Like my brothers, I am convinced this case should be affirmed. I write separately to express disagreement with one aspect of the lead opinion.
Senior Judge Kastl expresses concern that the staff judge advocate’s recommendation advised the convening authority that he should consider, among other things, mission requirements and discipline when taking action on the findings and the sentence. As he points out, the specific language he is concerned about was taken verbatim from the non-binding Discussion of R.C.M. 1107(b)(1).
If this language had been used prior to enactment of the Military Justice Act of 19835, I would agree with the above concern. However, under the 1983 legislation, as implemented by the 1984 Manual for Courts-Martial, the convening authority’s role is limited basically to clemency. See United States v. McKnight, 30 M.J. 205, 209 (C.M.A.1990); Article 60(c)(1) and (3), UCMJ; H.Rep. No. 549, 98th Cong., 1st Sess. 19-20 (1983); S.Rep. No. 53, 98th Cong., 1st Sess. 19-20 (1983); U.S.Code Cong. & Admin.News 1983, pp. 2177, 2183, 2184. See also, R.C.M. 1106 and 1107. “The action to be taken on the findings and sentence is within the sole discretion of the convening authority” and “is a matter of command prerogative.” R.C.M. 1107(b)(1). He “may for any reason or no reason disapprove a finding of guilty or approve a finding of guilty only of a lesser offense.” R.C.M. 1107(c), Discussion. See United States v. McKinley, 27 M.J. 78, 80 (C.M.A. 1988); Article 60(c), UCMJ.
In addition to considering “discipline,” the convening authority may want to consider “mission requirements” and decide that it is more important that a convicted accused be returned to duty than be placed in confinement or discharged. Neither the statute, Article 60, UCMJ, nor the Manual for Courts-Martial, United States, 1984, R. C.M. 1106 and 1107, prohibits the language used by the staff judge advocate.
Finally, it seems clear that Congress intended mission requirements and discipline be among a convening authority’s considerations:
Article 60(c) provides the convening authority with complete discretion in acting on the sentence, so long as the sentence is not made more severe. It also authorizes the convening authority to set aside a finding of guilty and dismiss the charge and specification as a matter of discretion. In addition, he may modify a finding of guilty to specify a lesser included offense. The requirement in the current Article 64 that the convening authority approve only so much of the findings of guilty and sentence “as he finds correct in law and fact” is deleted. Under Article 60, as proposed, the convening authority may take any action on findings and sentence he deems appropriate (as long- as the result is not made more severe). Such action is a matter of commander’s prerogative that is taken in the interests of justice, discipline, mission requirements, clemency, or other appropriate reasons, and is not a review for legal sufficiency.
S.Rep. No. 53, 98th Cong., 1st Sess. 19 (1983) (emphasis added). For the above reasons, I find no objections to the language used by the staff judge advocate in his recommendation to the convening authority.
. Pub.L. No. 98-209, sec. 5(a)(1), 97 Stat. 1393, 1396-97 (1983).