concurring:
In light of the comments contained in the Government motion to attach the affidavit of former Senior Judge Charles H. Mitchell, I choose to introduce this opinion with some remarks which I deem necessary to set the record straight.
—I have no recollection of having ever been aware of the nature or contents of any fitness reports received by former Judge Rubens for his service as a judge of this Court until I read about them in his affidavit and the Board for Correction of Naval Records application filed with this Court in connection with the instant case. I was, of course, aware of his orders to Panama, his non-selection for colonel, and his abiding conviction that both were due to his involvement in the Billig-Carlucci litigation. I had also been told by different people, however, that at least his non-selection for colonel was explainable by other factors relating to his performance in previous assignments. I recall discussing this matter, including former Judge Rubens’ abiding conviction that his orders and non-selection were in retaliation for his judicial decisions, with former Senior Judge Mitchell on several occasions. I neither had nor expressed any abiding conviction of my own as to the reasons for former Judge Rubens’ orders or non-selection, and I have no such abiding conviction now. I do recall expressing some sympathy with the awkwardness of his position, in that the senior trial counsel in the Billig case, who, rightly or wrongly, was severely criticized in the majority opinion in United States v. Billig, 26 M.J. 744 (N.M.C.M.R.1988), in which Judge Rubens concurred, had become the Head, Judge Advocate Division, Headquarters, U.S. Marine Corps. (This is not to imply that the individual concerned, for whom I have high personal regard, and who has been most helpful to this Court in maintaining our proper manning, acted in any way to Judge Rubens’ detriment; I refer simply to the generic awkwardness inherent in such a situation.) In consonance with having an open mind on the issues now before this Court, I certainly considered, and expressed to Senior Judge Mitchell, the possibility that official displeasure with the Billig-Carlucci litigation might have been, at least to some degree, a contributing factor in former Judge Rubens’ overall fate, and I am open to considering that possibility now with respect to his fitness reports as well as the orders and non-selection, if the appellant presents evidence to warrant that conclusion.
—I also recall discussing the matter of former Judge Rubens’ orders and non-selection on several occasions with Senior Judge Strickland, including former Judge Rubens’ abiding conviction that his orders and non-selection were in retaliation for his judicial decisions. I have no recollection of Senior Judge Strickland’s ever mentioning former Judge Rubens’ fitness reports as a judge of this Court. At no time did Senior Judge Strickland express or otherwise evince to me, or to anyone else in my presence, a conviction, abiding or otherwise, that Judge Rubens’ fate was due to his involvement in the Billig-Carlucci litigation, and our discussions left me with the general impression that he did not believe that.
—I also recall discussions among myself, former Senior Judge Mitchell, and other judges of this Court concerning the fates of the 0-6 judges who participated in the Billig-Carlucci litigation and were considered and selected by Selective Early Retirement Boards. These discussions were inconclusive as to what, if any, part their involvement in that litigation may have played in their selection for early retirement. I neither had nor expressed any abiding conviction concerning the reasons for their selection, and I have no such *919conviction now. I did, and do, deplore the appearance that arose from the selection of former judges of this Court who participated in the Billig decision for early retirement, even though I have been told by people who knew them that their selection was explainable on other grounds, and even though I personally disapproved of portions of the Billig opinion (as distinguished from the decision, itself, concerning which I have insufficient knowledge on which to base an opinion).
—In light of the foregoing, and after considering the authority cited by appellate Government counsel, I perceive no grounds for recusing myself from participation in this case.
Having said that, I concur generally in the majority opinion because I believe that it not only correctly states the law as it is but also follows the approach used by the U.S. Court of Military Appeals in United States v. Mabe, 33 M.J. 200 (C.M.A.1991) (Mabe [C]) and United States v. Graf, 35 M.J. 450 (C.M.A.1992). I also concur in the separate opinions of Judges Reed and Mollison, because they add thoughtful dimensions to the problem, and I share their thoughts, except that I view the Assistant Judge Advocate General for Military Law (AJAG) as the alter ego of the Judge Advocate General (JAG) and, therefore, no more or less qualified to be involved in judicial fitness ratings than the JAG, himself. It should be noted that the terms JAG and AJAG may be used to refer to both positions and the individuals occupying those positions at any particular time. I interpret the majority opinion to be using these terms to refer to the positions, themselves. If an incumbent of either position adopts an unduly partisan, . pro-Government stance, the presumptions on which the majority opinion entirely depends vanish, along with its conclusions, as long as that incumbent is involved in the rating process.
I view this case and Mabe [C] as closely related, at least on a theoretical level. In a sense, the underlying assumption of all the opinions in this case is that it would be improper for a reporting senior of appellate judges to base their fitness ratings on the reporting senior’s like or dislike for, or agreement or disagreement with, their decisions and rulings. Since, as in Mabe, there is nothing in any statute or regulation which expressly so provides, I conclude that this underlying assumption derives from whatever the U.S. Court of Military Appeals read between the lines of Articles 26 and 37 in Mabe [C] and propagated in Graf with respect to tenure.
The Mabel Graf” “solution” necessarily assumes that the JAG, his designee, and the AJAG are sufficiently disinterested, or at least possess sufficient integrity and equanimity, to give fair ratings without regard to their personal preferences or reactions to findings, sentences, and rulings, if told by the U.S. Court of Military Appeals that they must do so. My primary objective in writing the concurring opinion in United States v. Mabe, 30 M.J. 1254 (N.M.C.M.R.1990) (Mabe [N]), was to stimulate discussion about the effects on judicial independence of a system in which trial judges are rated by the JAG’s or their designees in light of the JAG’s’ varied responsibilities, some of which I characterized at that time as being “akin to those of attorneys-general and [involving] complex and subtle relationships to the line components of their services.” 30 M.J. at 1274.1
*920What I had, therefore, hoped for from the Mabe [C] opinion was that it would thoughtfully analyze the concept of rating trial judges by the JAG’s or their designees, discuss the propriety of assigning grades in “judgment,” “analytical ability,” and “organizational support,” or at least define how such grades might properly be assigned, and either mend the system within the limits of U.S. Court of Military Appeals authority or call for appropriate legislation (hence, the reference to “the complacency that would result from a less than comprehensive restructuring” near the end of the Mabe [N] concurrence, 30 M.J. at 1276). Because the opinion that emerged in Mabe [C] was very different, those issues remained unresolved and have now erupted at the appellate level.
The U.S. Court of Military Appeals’ approach to those issues was clarified to some degree in Graf. As I understand the opinion in Graf, it holds:
(1) that the Uniform Code of Military Justice (U.C.M.J.) does not provide for tenure for military judges;
(2) that the Due Process clause of Amendment V to the United States Constitution does not require that military trial or appellate judges be granted tenure;
(3) that, absent such a constitutional requirement, the U.S. Court of Military Appeals lacks the power to override the Uniform Code of Military Justice so as to provide for tenure by judicial fiat; and
(4) that whatever it was that Mabe [C] found between the lines of Articles 26 and 37, U.C.M.J., to render impermissible the rating of military trial judges on their findings and sentences likewise precluded the decertification or transfer of military trial or appellate judges on the basis of the JAG’s’ opinions of their findings, sentences, or rulings.
If the U.S. Court of Military' Appeals apply the Mabel Graf approach to this case, as I expect, they will merely hold that reporting seniors of appellate military judges are prohibited from basing the latters’ fitness reports on the formers’ like or dislike for, or agreement or disagreement with, the judges’ opinions and rulings. Judges who believe that such limitation has been transgressed will be referred to the Board for Correction of Military/Naval Records and Article 138 or, perhaps, be invited to file a petition for extraordinary relief in the U.S. Court of Military Appeals.
The Mabel Graf approach, which I take to define the law we must follow, leads inexorably to affirmance in this case, and I consider the majority and other opinions addressing the issues in this case, taken together, to comprise an appropriate vehicle for arriving at that result. Accordingly, I concur in them all, subject to the qualifications noted supra.
My concern with this disposition, however, as with the dispositions in Mabe [C] and Graf, is that it is almost wholly lacking in any practical mechanism for preventing, detecting, or remedying violations. Unless a reporting senior is clumsy enough to insert objectively prohibited comments in the narrative section of a fitness report, the report can be made virtually inscrutable. The Board for Correction of Military/Naval Records and Article 138 are useless in such cases, as acknowledged in other opinions in this ease and as explained in former Judge Rubens’ affidavit (aside from the merit or lack of merit of his own application for relief). As I pointed out in the Mabe [NJ concurrence:
Moreover, whereas, in the past, nearly all circuit judges had already attained the grade of 0-6, many now are, or shortly will be, 0-5’s competitive for 0-6 in a highly selective environment, who understand perfectly that, with respect to their own fitness reports, the least adjustment in the rankings or slightest nuance in a narrative could make the difference between selection and passover.
30 M.J. at 1275. As it turns out, that may have been an understatement, for I was once informed by a member of a selection board which considered an officer on whom I had written fitness reports that those reports, which I had intended to be superlative, were deemed less so because key *921phrases in the superlative comments I had written were not underlined. The truth is that the Board for Correction of Military/Naval Records and Article 138 simply are not calibrated to respond to nuances and codes which are instantly recognizable by selection boards, and anyone seriously concerned with judicial independence needs to understand this.
As mentioned previously, once opinions and rulings are placed off-limits, it is unclear on what the letter marks in “judgment,” “analytical ability,” and “organizational support” are supposed to be based. This problem is closely related to the serious problem of the lack of objective rating criteria identified in other opinions in this case, and both problems share the inscrutability feature of the fitness report issue previously addressed.
In fairness, it must be acknowledged that, as held in Graf, where the Congress have established a procedure, courts are limited in invalidating that procedure to infirmities of constitutional dimension. Moreover, the Mabe/Graf approach parallels the measure adopted by the Congress, themselves, in Article 37 with respect to members, that is, merely placing certain areas off-limits to reporting seniors, while leaving the members at the mercy of the same reporting seniors in other areas. A search of the legislative history of that addition to Article 37 in the Military Justice Act of 1968 has failed to disclose any discussion regarding its probable efficacy.
The old (and quaintly gender-specific) fitness report form, NAVPERS 1611/1 (Rev. 12-69), contained a marking category called “moral courage,” which it defined as “To do what he ought to do regardless of consequences to himself.” When all is said and done, that is what was required of a military trial or appellate judge before Mabe and Graf, and it is equally required now. As desirable as moral courage may be, however, the presupposition that there should be adverse consequences to oneself for doing what one ought to do suggests that something is wrong. The administrative framework in which the military judiciaries operate should promote judicial independence affirmatively, not by taxing the moral courage of the judges to compensate for adverse structural conditions, which, by their very existence, create a perception of judicial self-interest in the outcome of decisions among the judges themselves, accused, and members of the public.
If, in this case, the Mabel Graf approach was adopted with resignation as the best that could be achieved judicially under the present statutory scheme, that would be one thing; but, if it was put forward as a solution, that would be quite another, for it would then pose a grave risk of generating the very “complacency that would result from a less than comprehensive restructuring” warned of in the Mabe [N] concurrence, which could delay meaningful reform for years.
Judge MOLLISON, with whom Senior Judge ORR and Judge LAWRENCE join, concurring in part and concurring in the result:
I concur in the Chief Judge’s analysis of the due process aspect of the principal issue, but I concur in Judge Reed’s analysis of the command influence aspect. This case fortuitously is the vehicle for airing an important issue respecting the relationship between the Judge Advocate General and the officers appointed by him to this Court. The principal assignment of error concerns the delicate balance to be struck between eongressionally authorized JAG supervision of the Court and eongressionally mandated independence of the Court. I strike the balance as follows: Unless the rating and ranking of appellate military judges is accomplished by the Judge Advocate General based on clearly stated criteria applicable to their unique, independent function in the military (and only with the assistance of persons having no arguable interest, official or otherwise, in the outcome of cases before the Court), military appellate review will not enjoy the confidence in its integrity and independence that Congress and the public require. Means currently exist to redress palpable, individual instances of command influence, and those means promote confidence in the integrity of the appellate process. The current rating/rank*922ing system breeds claims of subtle, systemic command influence no less worthy of concern. One can only speculate what politically charged cases may come before military appellate tribunals in the future and how their integrity and independence will be tested. But now is the time to remove the lingering doubts the current rating/ranking system fosters.
. Perhaps the correct analysis of this issue in a system such as ours requires that appearances of conflict be judged by a different standard when they arise from a practice or relationship which the Congress, themselves, have created, expressly or at least by implication. The U.S. Court of Military Appeals have recognized that staff judge advocates and convening authorities act in a prosecutorial capacity before trial and in a judicial (reviewing) capacity in the same case after trial, United States v. Fernandez, 24 M.J. 77 (C.M.A.1987). I cannot imagine that civilian due process would tolerate the civilian analogue of such a practice, and there is no way that an appearance of conflict can be dispelled, as the legislative history of the U.C.MJ. demonstrates; yet, notwithstanding the appearance of conflict, the practice is sanctioned as compatible with military due process because the Congress have specifically legislated it, and situations of demonstrated actual bias on the part of staff judge advocates and convening authorities are dealt with on a case-by-case basis. My concurrence in the APPEARANCE OF IMPROPRIETY section of the majority opinion is based on *920this analysis, which I do not particularly like but believe is probably the law.