Opinion of the Court
Quinn, Chief Judge:
The accused contends he was deprived of a fair trial and a fair review of his conviction by command influence. The contention is based upon a lecture given by the Staff Judge Advocate, Fort Devens, Massachusetts, on March 20, 1965, to officers at the Post, some of whom were members of the court-martial which later tried him.
On April 27, 1965, before a general court-martial convened at Fort Dev-ens, the accused entered a plea of guilty to desertion, terminated by apprehension, escape from confinement, and breach of parole, in violation of Articles 85, 95, and 134, Uniform Code of Military Justice, 10 USC §§ 885, 895, and 934, respectively. He was convicted as charged. Although subject to a maximum punishment of confinement at hard labor for four and one-half years, forfeiture of all pay allowances, reduction to the lowest enlisted grade, and a dishonorable discharge, he was sentenced to confinement at hard labor for eighteen months, reduction to the lowest enlisted grade, forfeiture of $52.00 per month for eighteen months, and a dishonorable discharge. In his post-trial interview, he indicated he was needed at home and had no desire to be restored to duty. In accordance with a pretrial understanding with the convening authority, the dishonorable discharge was changed to a bad-conduct discharge and the period of confinement was reduced from eighteen months to one year.
At trial, there was no voir dire of the court members as to whether they attended the staff judge advocate’s lecture and, if so, whether it had any influence upon them. In his petition for grant of review, the accused assumed that the members of the court-martial necessarily attended the lecture because they were assigned to Fort Devens at the time. The Government conceded that five of the seven court members actually attended the lecture. The concession has not been withdrawn. Accordingly, we can put aside consideration of the validity of the accused’s assumption, and accept as an established fact that members of the court-martial attended the lecture. We turn, therefore, directly to the substance of the lecture. See United States v Davis, 12 USCMA 576, 31 CMR 162.
The -indicated primary purpose of the lecture was to define the duties and responsibilities of members of courts-martial. At the outset, the staff judge advocate expressed alarm at the “numerous requests” for excuse from court duty. He noted that service on a court-martial was important duty. “[Njothing,” he said, “will increase morale more than the effective, speedy, impartial and fair administration of military justice”; and nothing diminishes morale more “than slow, ineffective, partial or unfair treatment by courts-martial.” After emphasizing the importance of court-martial duty, he pointed out that it was subject to “continuing change.” Briefly, he commented on various recommendations for change, from a period before the Uniform Code of Military Justice to bills introduced in the Senate in the current session of Congress by Senator Sam J. Ervin, Chairman of the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, and other bills sponsored by the Armed Services which had been introduced in the House of Representatives. He listed the objectives of these bills. One, he pointed out, expanded the prohibition against coni-[113]*113mand control of courts-martial. Interpolating, he assured his listeners he had reviewed the text of his own talk “thoroughly” to avoid any implication that he desired to “influence you in your decisions as present or potential court members.”
After this general discourse, the .■staff judge advocate turned to the •procedure used at Fort Devens for the selection of members of courts-.martial. He covered a number of problems. He pointed out that the commanding general personally appointed and personally excused a prospective court member. He asked that .no one selected for court duty “take .it out” on the member of his staff who might call to advise the member of his appointment and of the trial dates. He estimated the probable number of times a particular general court-martial might be convened, and the number of cases it might hear at any ■one session. He also reviewed the jurisdiction and punishment powers of the various courts, and discussed the overall procedure of a general court-martial. Then he discussed the 'specific” responsibilities of court members.
The enumeration of the special responsibilities indicated that “[fjirst and foremost” court members were jurors. Court members, it was said, must never let “their personal feelings control their decision”; if that occurs, “our system of justice fails.” The staff judge advocate advised his audience that court members took an oath to decide a case impartially and in accordance with the evidence. A court-martial was “no place for prejudice, bias, or personal feelings,” and service on a court required common sense and attentiveness to the proceedings. Each person in the audience was asked to “[ijmagine how you would feel if you were on trial,” and a court member fell asleep, doodled or gazed out the window during the trial. Such conduct was unfair to the accused, unfair to the Government, and reflected “no credit” upon the court member.
After commenting on the attitudes and conduct expected of a court member, the staff judge advocate turned to the matter of courts-martial sentences. He began with the general statemént that an appropriate sentence must be determined in “each particular case,” and proceeded to elaborate on the various factors which should be considered. First, he referred to the nature of the offense. He pointed out the general difference between a felony and a misdemeanor, describing the former as an offense in which the maximum punishment exceeded confinement for more than one year, and the latter as an offense carrying a lesser punishment. Illustrations of each offense were given. Next, he called attention to the necessity of considering “aggravating circumstances,” such as brutality in a beating, and “mitigating circumstances,” such as poor education or extreme youthfulness. He reminded the audience that the sentence procedure was also “no place for . . . personal feelings,” and “[y]ou shouldn’t consider what you think the convening authority would like; it is your responsibility, and your’s alone, to determine an appropriate sentence.” At that point, he undertook to explain “the effect” of certain sentences. It is this part of the lecture which the accused contends represents a command effort to influence prospective courts-martial members in the audience to include additional penalties in the sentences.
First, the staff judge advocate discussed the effect of a sentence to a punitive discharge but with no confinement or forfeitures. With such a sentence, the accused remained in a full duty status and was entitled to pay and allowances, pending completion of appellate review. The staff judge advocate argued, “most people in such a situation” do not “give a damn” what they do; they get into more trouble and “lead other soldiers . . . into trouble.” However, he cautioned his listeners not to “misunderstand” him; he was certain there were cases in which a punitive discharge alone was an appropriate Sentence, but he urged them to judge [114]*114“each case on its own merits,” considering the “individual involved.”
Next, the staff judge advocate referred to a sentence extending to a punitive discharge and total forfeitures, but not including confinement.
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Opinion of the Court
Quinn, Chief Judge:
The accused contends he was deprived of a fair trial and a fair review of his conviction by command influence. The contention is based upon a lecture given by the Staff Judge Advocate, Fort Devens, Massachusetts, on March 20, 1965, to officers at the Post, some of whom were members of the court-martial which later tried him.
On April 27, 1965, before a general court-martial convened at Fort Dev-ens, the accused entered a plea of guilty to desertion, terminated by apprehension, escape from confinement, and breach of parole, in violation of Articles 85, 95, and 134, Uniform Code of Military Justice, 10 USC §§ 885, 895, and 934, respectively. He was convicted as charged. Although subject to a maximum punishment of confinement at hard labor for four and one-half years, forfeiture of all pay allowances, reduction to the lowest enlisted grade, and a dishonorable discharge, he was sentenced to confinement at hard labor for eighteen months, reduction to the lowest enlisted grade, forfeiture of $52.00 per month for eighteen months, and a dishonorable discharge. In his post-trial interview, he indicated he was needed at home and had no desire to be restored to duty. In accordance with a pretrial understanding with the convening authority, the dishonorable discharge was changed to a bad-conduct discharge and the period of confinement was reduced from eighteen months to one year.
At trial, there was no voir dire of the court members as to whether they attended the staff judge advocate’s lecture and, if so, whether it had any influence upon them. In his petition for grant of review, the accused assumed that the members of the court-martial necessarily attended the lecture because they were assigned to Fort Devens at the time. The Government conceded that five of the seven court members actually attended the lecture. The concession has not been withdrawn. Accordingly, we can put aside consideration of the validity of the accused’s assumption, and accept as an established fact that members of the court-martial attended the lecture. We turn, therefore, directly to the substance of the lecture. See United States v Davis, 12 USCMA 576, 31 CMR 162.
The -indicated primary purpose of the lecture was to define the duties and responsibilities of members of courts-martial. At the outset, the staff judge advocate expressed alarm at the “numerous requests” for excuse from court duty. He noted that service on a court-martial was important duty. “[Njothing,” he said, “will increase morale more than the effective, speedy, impartial and fair administration of military justice”; and nothing diminishes morale more “than slow, ineffective, partial or unfair treatment by courts-martial.” After emphasizing the importance of court-martial duty, he pointed out that it was subject to “continuing change.” Briefly, he commented on various recommendations for change, from a period before the Uniform Code of Military Justice to bills introduced in the Senate in the current session of Congress by Senator Sam J. Ervin, Chairman of the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, and other bills sponsored by the Armed Services which had been introduced in the House of Representatives. He listed the objectives of these bills. One, he pointed out, expanded the prohibition against coni-[113]*113mand control of courts-martial. Interpolating, he assured his listeners he had reviewed the text of his own talk “thoroughly” to avoid any implication that he desired to “influence you in your decisions as present or potential court members.”
After this general discourse, the .■staff judge advocate turned to the •procedure used at Fort Devens for the selection of members of courts-.martial. He covered a number of problems. He pointed out that the commanding general personally appointed and personally excused a prospective court member. He asked that .no one selected for court duty “take .it out” on the member of his staff who might call to advise the member of his appointment and of the trial dates. He estimated the probable number of times a particular general court-martial might be convened, and the number of cases it might hear at any ■one session. He also reviewed the jurisdiction and punishment powers of the various courts, and discussed the overall procedure of a general court-martial. Then he discussed the 'specific” responsibilities of court members.
The enumeration of the special responsibilities indicated that “[fjirst and foremost” court members were jurors. Court members, it was said, must never let “their personal feelings control their decision”; if that occurs, “our system of justice fails.” The staff judge advocate advised his audience that court members took an oath to decide a case impartially and in accordance with the evidence. A court-martial was “no place for prejudice, bias, or personal feelings,” and service on a court required common sense and attentiveness to the proceedings. Each person in the audience was asked to “[ijmagine how you would feel if you were on trial,” and a court member fell asleep, doodled or gazed out the window during the trial. Such conduct was unfair to the accused, unfair to the Government, and reflected “no credit” upon the court member.
After commenting on the attitudes and conduct expected of a court member, the staff judge advocate turned to the matter of courts-martial sentences. He began with the general statemént that an appropriate sentence must be determined in “each particular case,” and proceeded to elaborate on the various factors which should be considered. First, he referred to the nature of the offense. He pointed out the general difference between a felony and a misdemeanor, describing the former as an offense in which the maximum punishment exceeded confinement for more than one year, and the latter as an offense carrying a lesser punishment. Illustrations of each offense were given. Next, he called attention to the necessity of considering “aggravating circumstances,” such as brutality in a beating, and “mitigating circumstances,” such as poor education or extreme youthfulness. He reminded the audience that the sentence procedure was also “no place for . . . personal feelings,” and “[y]ou shouldn’t consider what you think the convening authority would like; it is your responsibility, and your’s alone, to determine an appropriate sentence.” At that point, he undertook to explain “the effect” of certain sentences. It is this part of the lecture which the accused contends represents a command effort to influence prospective courts-martial members in the audience to include additional penalties in the sentences.
First, the staff judge advocate discussed the effect of a sentence to a punitive discharge but with no confinement or forfeitures. With such a sentence, the accused remained in a full duty status and was entitled to pay and allowances, pending completion of appellate review. The staff judge advocate argued, “most people in such a situation” do not “give a damn” what they do; they get into more trouble and “lead other soldiers . . . into trouble.” However, he cautioned his listeners not to “misunderstand” him; he was certain there were cases in which a punitive discharge alone was an appropriate Sentence, but he urged them to judge [114]*114“each case on its own merits,” considering the “individual involved.”
Next, the staff judge advocate referred to a sentence extending to a punitive discharge and total forfeitures, but not including confinement. Such a sentence, the staff judge advocate noted, also left the accused in a full duty status, but he could not get paid. “[W]e,” he said, “cannot have a soldier on active duty . . . without paying him.” Two courses to alleviate the problem were available: Execution of the forfeitures could be withheld until final approval of the conviction; or the forfeitures could be reduced and ordered executed in the reduced amount. Neither action was thought to be consistent with “what the court believed . . . [to be] appropriate,” but one or the other had to be taken because a full duty status without pay was contrary to custom.
A third type of problem sentence was that providing for long confinement (two or three years was mentioned as an illustration) and partial forfeiture of pay. Since no discharge was included, at the end of his confinement the accused was entitled to return to duty. The staff judge advocate indicated the Department of the Army did not favor that kind of situation, and, therefore, normally reduced the period of confinement to six months. As a result, the desires of the court-martial were “not carried out.” The staff judge advocate said he did not know what prompted a court-martial to impose a sentence of this kind, unless it believed the accused would “be boarded out of the service.” He observed such board proceedings could not be taken, in view of a recent change in Army regulations prohibiting an administrative discharge for misconduct which was the subject of a court-martial (AR 635-200, paragraph 8, Change 11).
Another aberrant sentence was the one which imposed confinement, but no forfeitures. Under such a sentence, the accused will just “be sitting in jail, doing nothing,” but draw full pay and allowances. It seemed to him that this kind of sentence might be appropriate in “a few cases of extreme hardship,” but it appeared to be “incongruous” for the accused to go to jail “for six months or more” and yet receive full pay and allowances.
The next sentence situation discussed was one which “occurs occasionally in a special court-martial.” This was the case of a sentence to confinement at hard labor and reduction to an intermediate grade. Referring to Article 58a, Uniform Code of Military Justice, 10 USC § 858a, the staff judge advocate noted that reduction to the lowest enlisted grade results automatically from a sentence to confinement at hard labor or hard labor without confinement. Consequently, reduction by a court-martial to an intermediate grade was “inconsistent.” To accord the accused the benefit of any doubt as to the court-martial’s intention in imposing a sentence of this kind, the confinement, the staff judge advocate argued, “must be set aside” on review.
Finally, the staff judge advocate considered the sentence providing for hard labor without confinement. This sentence, he said, is hard to administer because the work performed by a regular duty soldier may be harder than that required of the accused in execution of the sentence. He asked the listeners to consider this “effect” in imposing such a sentence; and he cited a case in which the effect on the “morale” of the regular duty soldiers was “devastating.”
The staff judge advocate concluded the lecture by expressing the hope that he had provided a better understanding of the duties of a court-martial member and a better understanding of the meaning and effect of the various sentences imposed by courts-martial. He again emphasized that he did not want “to be charged with command influence.”
The responsibility of the members of a court-martial is to determine, impartially and according to the evidence, the accused’s guilt or innocence, and if it finds the accused guilty, to impose an appropriate sentence on the [115]*115basis of all the matters presented to it. Court members are not concerned with administrative problems incident to the execution of a sentence. See United States v Quesinberry, 12 USCMA 609, 31 CMR 195; United States v Olson, 7 USCMA 242, 22 CMR 32. Consequently, they should not be troubled with, or confused by, instructions on possible consequences that might result from certain types of punishment. United States v Pajak, 11 USCMA 686, 29 CMR 502. It is difficult, therefore, to see the need for the staff judge advocate’s complaint about certain sentences in a lecture intended to acquaint officers with their “duties and responsibilities” as court members. However, we are not concerned with the soundness of his criticism. See United States v Deain, 5 USCMA 44, 50, 17 CMR 44. Our interest is in the substance of the lecture; specifically, whether it presents at least a fair risk that the court members who attended it would be inclined to impose a sentence of a particular kind merely to obviate the problems mentioned by the staff judge advocate.
We have summarized the whole of the lecture because its impact upon prospective court members can be judged only as a whole. United States v Danzine, 12 USCMA 350, 30 CMR 350. So viewed, it impresses us as a rather commonplace discussion of the problems in the selection of members of a court-martial and of the general responsibilities of a court member. Its only alien element is in the criticism of certain kinds of sentence. Assuming, as appellate defense counsel contend, the criticism is, in some respects, erroneous, we cannot interpret it as an exhortation for more severe sentences generally, or for the inclusion in every sentence of a punitive discharge, forfeitures in some amount, and confinement at hard labor for some period. Cf. United States v Kitchens, 12 USCMA 589, 31 CMR 175. True, the discussion of a sentence to hard labor without confinement comes close to asking prospective members to substitute confinement at hard labor for that type of penalty. Even this discussion, however, is qualified by the clear implication that a sentence to hard labor without confinement is a problem only when the tasks assigned to the accused are less onerous than those of persons on regular duty. This is patently a problem in the execution of a sentence, not its imposition.
As we construe the last part of the lecture in context, we are satisfied that it was intended by the staff judge advocate as a plea for careful consideration of the factors that affect the particular accused, rather than as a direction to include, at all times and under all circumstances, certain combinations of punishment. Our reading of the transcript convinces us that prospective court members among his listeners would, in the words of the lecture, conclude they “alone” had the responsibility to determine “an appropriate sentence, under all the facts and circumstances” of the case, and they were to fulfill that responsibility without considering “what . . . the convening authority would like.” See United States v Navarre, 5 USCMA 32, 17 CMR 32. The leniency of the punishment imposed by the court-martial in relation to the maximum penalty reflects a freedom of decision that belies obedience to the alleged dictates of the lecture. Also, the sentence compares favorably with that which, before trial, the accused described as “lenient” and which he asked the convening authority to approve. See United States v Davis, supra, page 581. Cf. United States v Johnson, 14 USCMA 548, 553, 34 CMR 328.
Our conclusion as to the import of the lecture is equally dispositive of the accused’s contention that it disqualified the staff judge advocate from participating in the post-trial review. Accordingly, we affirm the decision of the board of review.
Judge Kilday concurs.