Opinion of the Court
George W. Latimer, Judge:
A general court-martial convicted the accused of attempted sodomy, in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880. It sentenced him to a bad-conduct discharge and reduction to the grade of seaman recruit. Intermediate reviewing authorities affirmed the findings and sentence, and we granted his petition for review to determine whether or not the action of the convening authority in affirming the findings and sentence was taken under the mistaken belief that his discretion was controlled by the provisions of a certain policy pronouncement hereinafter designated as SECNAV Instruction 1620.1, June 5, 1953, issued by the Secretary of the Navy.
The facts surrounding the substantive offense are of no importance, and hence we relate only those matters relevant to the issue granted. The accused was sentenced on June 9, 1960, and thereafter and prior to the convening authority’s action, the accused, pursuant to the provisions of BUPERS Instruction 5815.1, June 3, 1960, submitted a letter requesting probation. This letter was addressed to the convening authority through accused’s immediate superior officer and the commanding officer of the station in turn. The former recommended approval of the request, while the latter made a contrary recommendation. Also before the convening authority acted, the accused submitted a letter signed by his immediate superior, a commissioned warrant officer, and two chief petty officers, recommending that he be restored to duty. In the endorsement by the commanding officer of the station on accused’s request was a reference to SECNAY Instruction 1620.1. The particular statement of this document which is relevant to the issue at hand provides that “Known homosexual individuals are military liabilities and must be eliminated from the service.” However, this declaration must be considered in pari materia with other administrative requirements which have to do with elimination. Under the facts of this case, the accused would be classified in category two defined in paragraph 5 of the instructions. Persons in that class are to be separated administratively under conditions other than honorable unless they reject that form of separation. In the event an administrative discharge is refused, the instructions provide that the individual will be recommended for trial by court-martial. Here, the accused was offered an administrative discharge, but he preferred the judicial process.
In accordance with article 61, Uniform Code of Military Justice, 10 USC § 861, the staff legal officer of the convening authority submitted his review and recommendation. He considered the petitions of the accused and the one originated by the four Naval officers but concluded the punishment should not be lessened. Thereafter, the con[216]*216vening authority approved the sentence and did not grant probation.
Although no mention is made in either the staff legal officer’s review or the convening authority’s action of any policy directive, SECNAV Instruction 1620.1 was referred to in the station commander’s endorsement to accused’s request for probation, which was directed to the convening authority and was attached to the record. Also, before trial, after the Article 32 investigation had been completed, that instruction was adverted to by the commanding officer of the station in his recommendation to the convening authority that the charge against accused be referred for trial by court-martial. For those reasons it is contended by appellate defense counsel that the convening authority considered the instruction and that it controlled his action on accused’s request for probation.
This particular instruction was before this Court in United States v Doherty, 5 USCMA 287, 17 CMR 287. Certain of the observations we made therein are pertinent in this instance. In that case we directed attention to Article 64 of the Code, 10 USC § 864, which provides:
“In acting on the findings and sentence of a court-martial, the convening authority may approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in his discretion determines should be approved. Unless he indicates otherwise, approval of the sentence is approval of the findings and sentence.”
and to Article 71(d) of the Code, 10 USC § 871. The latter contains an additional grant of authority to the convening authority, and is as follows :
“All other court-martial sentences, unless suspended, may be ordered executed by the convening authority when approved by him. The convening authority may suspend the execution of any sentence, except a death sentence.”
We then went on to state our Views to the effect that if the SECNAV Instructions were a positive command which denied the convening authority any discretion to modify the punitive discharge portion of the sentence, they were invalid as being in conflict with the Code. We there said:
“We need not decide in this case whether the statement that homosexuals must be eliminated from the Naval service is a positive command. We have no control over the administrative discharges of a service and we express no opinion as to what they may do in that field. But, if the language is construed as an inviolable command to those in the military judicial system, such as courts-martial, the convening authorities, or boards of review, then the instructions conflict with the Code and must yield. We do not interpret them to go that far, but we are convinced the convening authority did. If so, he failed to make that independent evaluation of the appropriateness of the sentence approved by him which Congress decreed he make.” [5 USCMA at page 296.]
With the foregoing framework as a starting point, we look to this record to ascertain whether, assuming the convening authority considered the instructions, he understood they were not mandatory and accordingly made full exercise of the powers granted to him by the Code. Our interpretation of the record convinces us that he was fully advised and understood all of his prerogatives as a convening authority. We reach that conclusion for the following reasons. The accused was sentenced on June 9, 1960, and the convening authority did not act until July 22, 1960. While the precise date the record was forwarded to his headquarters is not disclosed, it was received in the office of the staff legal officer sometime prior to the latter date. In the interim period between the two above-mentioned dates, two letters recommending probation had been forwarded to and received by the staff legal officer on the staff of the [217]*217convening authority for they are referred to in his review. That correspondence is compelling evidence of the fact that at least four officers immediately under the command of the convening authority did not believe the SECNAV Instructions were mandatory. Otherwise they would not have joined in the petition, for the action requested would have been inconsistent with their belief. But more important, the staff legal officer was of the opinion that the instructions were not mandatory, and this belief he conveyed to the convening authority. In his review, after expressly stating he had given consideration to the two letters requesting clemency, the nature of the offense and other attending circumstances, he recommended that the sentence be approved.
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Opinion of the Court
George W. Latimer, Judge:
A general court-martial convicted the accused of attempted sodomy, in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880. It sentenced him to a bad-conduct discharge and reduction to the grade of seaman recruit. Intermediate reviewing authorities affirmed the findings and sentence, and we granted his petition for review to determine whether or not the action of the convening authority in affirming the findings and sentence was taken under the mistaken belief that his discretion was controlled by the provisions of a certain policy pronouncement hereinafter designated as SECNAV Instruction 1620.1, June 5, 1953, issued by the Secretary of the Navy.
The facts surrounding the substantive offense are of no importance, and hence we relate only those matters relevant to the issue granted. The accused was sentenced on June 9, 1960, and thereafter and prior to the convening authority’s action, the accused, pursuant to the provisions of BUPERS Instruction 5815.1, June 3, 1960, submitted a letter requesting probation. This letter was addressed to the convening authority through accused’s immediate superior officer and the commanding officer of the station in turn. The former recommended approval of the request, while the latter made a contrary recommendation. Also before the convening authority acted, the accused submitted a letter signed by his immediate superior, a commissioned warrant officer, and two chief petty officers, recommending that he be restored to duty. In the endorsement by the commanding officer of the station on accused’s request was a reference to SECNAY Instruction 1620.1. The particular statement of this document which is relevant to the issue at hand provides that “Known homosexual individuals are military liabilities and must be eliminated from the service.” However, this declaration must be considered in pari materia with other administrative requirements which have to do with elimination. Under the facts of this case, the accused would be classified in category two defined in paragraph 5 of the instructions. Persons in that class are to be separated administratively under conditions other than honorable unless they reject that form of separation. In the event an administrative discharge is refused, the instructions provide that the individual will be recommended for trial by court-martial. Here, the accused was offered an administrative discharge, but he preferred the judicial process.
In accordance with article 61, Uniform Code of Military Justice, 10 USC § 861, the staff legal officer of the convening authority submitted his review and recommendation. He considered the petitions of the accused and the one originated by the four Naval officers but concluded the punishment should not be lessened. Thereafter, the con[216]*216vening authority approved the sentence and did not grant probation.
Although no mention is made in either the staff legal officer’s review or the convening authority’s action of any policy directive, SECNAV Instruction 1620.1 was referred to in the station commander’s endorsement to accused’s request for probation, which was directed to the convening authority and was attached to the record. Also, before trial, after the Article 32 investigation had been completed, that instruction was adverted to by the commanding officer of the station in his recommendation to the convening authority that the charge against accused be referred for trial by court-martial. For those reasons it is contended by appellate defense counsel that the convening authority considered the instruction and that it controlled his action on accused’s request for probation.
This particular instruction was before this Court in United States v Doherty, 5 USCMA 287, 17 CMR 287. Certain of the observations we made therein are pertinent in this instance. In that case we directed attention to Article 64 of the Code, 10 USC § 864, which provides:
“In acting on the findings and sentence of a court-martial, the convening authority may approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in his discretion determines should be approved. Unless he indicates otherwise, approval of the sentence is approval of the findings and sentence.”
and to Article 71(d) of the Code, 10 USC § 871. The latter contains an additional grant of authority to the convening authority, and is as follows :
“All other court-martial sentences, unless suspended, may be ordered executed by the convening authority when approved by him. The convening authority may suspend the execution of any sentence, except a death sentence.”
We then went on to state our Views to the effect that if the SECNAV Instructions were a positive command which denied the convening authority any discretion to modify the punitive discharge portion of the sentence, they were invalid as being in conflict with the Code. We there said:
“We need not decide in this case whether the statement that homosexuals must be eliminated from the Naval service is a positive command. We have no control over the administrative discharges of a service and we express no opinion as to what they may do in that field. But, if the language is construed as an inviolable command to those in the military judicial system, such as courts-martial, the convening authorities, or boards of review, then the instructions conflict with the Code and must yield. We do not interpret them to go that far, but we are convinced the convening authority did. If so, he failed to make that independent evaluation of the appropriateness of the sentence approved by him which Congress decreed he make.” [5 USCMA at page 296.]
With the foregoing framework as a starting point, we look to this record to ascertain whether, assuming the convening authority considered the instructions, he understood they were not mandatory and accordingly made full exercise of the powers granted to him by the Code. Our interpretation of the record convinces us that he was fully advised and understood all of his prerogatives as a convening authority. We reach that conclusion for the following reasons. The accused was sentenced on June 9, 1960, and the convening authority did not act until July 22, 1960. While the precise date the record was forwarded to his headquarters is not disclosed, it was received in the office of the staff legal officer sometime prior to the latter date. In the interim period between the two above-mentioned dates, two letters recommending probation had been forwarded to and received by the staff legal officer on the staff of the [217]*217convening authority for they are referred to in his review. That correspondence is compelling evidence of the fact that at least four officers immediately under the command of the convening authority did not believe the SECNAV Instructions were mandatory. Otherwise they would not have joined in the petition, for the action requested would have been inconsistent with their belief. But more important, the staff legal officer was of the opinion that the instructions were not mandatory, and this belief he conveyed to the convening authority. In his review, after expressly stating he had given consideration to the two letters requesting clemency, the nature of the offense and other attending circumstances, he recommended that the sentence be approved. However, he went on much further, and in the final paragraph of his review he informed the convening authority of his powers and obligations in these words:
“In this connection, however, the convening authority is advised that he should not approve the finding of guilty unless he is satisfied beyond a reasonable doubt from all the evidence in this case of the accused’s guilt and that such finding is correct in law and fact. The convening authority is further advised that he should not approve the sentence unless he finds it to be legal and appropriate, and that though legal and appropriate, he may set aside, modify, or suspend the sentence, or any part thereof, as in his discretion he feels it should be.”
Specifically, he advised the convening authority that the latter should not approve the sentence unless he considered it appropriate and that he could set aside, modify, or suspend the sentence or any part thereof as he in his discretion determined to be suitable and proper. In the light of that advice, it would indeed be sheer conjecture for us to conclude that the convening authority believed he was compelled to affirm the punitive discharge because of the declaration in the instructions that homosexuals should be eliminated from the Naval service,
Another item of importance in this case is accused’s request for probation. It referred to and was predicated upon the provisions of BUPERS Instruction 5815.1, mentioned previously. Those instructions were promulgated some seven years after the SECNAV Instruction herein involved, and they quote the following part of paragraph 88e(l) of the Manual for Courts-Martial, United States, 1951:
“ ‘Ordinarily, the purpose of suspending the execution of a sentence is to grant the accused a probationary period within which he may show by his conduct that he is entitled to have the suspended portion of the sentence remitted. The convening authority should suspend the whole of a sentence (except death) when it appears to him that such action will promote discipline and aid in the rehabilitation of the accused.’ ”
This quotation is followed by two other provisions. One admonishes that:
“Nothing in this Instruction is to be construed as an attempt to limit the full discretion of reviewing authorities in acting on sentences or as an attempt to interfere with their duty to review each sentence for adequacy, appropriateness, and legality.”
And the other states:
“Suspending Punitive Discharges. In acting on the record of trial, convening and supervisory authorities are encouraged to suspend a member’s punitive discharge when, based upon thorough consideration of each ease on its individual merits, there is reason to believe that the member can and will render honorable and useful service, if restored to duty on probation.”
The whole tenor of this document is to give the reviewing authorities wide latitude in suspending the execution of sentences and it in no way is restrictive as to the crime involved. Surely, had the convening authority decided that probation was appropriate in this case, he had ample authori[218]*218ty emanating from higher headquarters to justify that action.
Finally, another factor which militates against the defense contention is that the convening authority could have administratively separated the accused from the Naval service. True it is that the accused had been offered an opportunity to accept that form of discharge but rejected it. However, his rejection was not binding on the Naval service and, after accused had been sentenced by a court-martial to punitive separation, the convening authority could have remitted the discharge adjudged by the court-martial and undertaken administrative action to accomplish accused’s separation by a less serious type of discharge. Cf. United States v Plummer, 12 USCMA 18, 30 CMR 18. There is no proscription in the SECNAV Instructions which prohibits that action from being taken. Moreover, had the convening authority considered he was shackled and that clemency of the type requested was appropriate, undoubtedly he would have recommended that disposition to higher headquarters. Cf. Doherty, supra.
In summation, this record shows affirmatively that the convening authority was informed properly concerning his powers by his staff legal officer and we are furnished with no base for a conclusion that he disregarded the advice, the Articles of the Code, our decided cases, and later Naval regulations because he may have been aware of a policy declaration that sodomists should be separated from the service. While command influence is condemned at all levels, policy declarations generally conceded to be necessary to discipline and order are proper. The important question is not whether the convening authority gave consideration to the policy but rather did he understand fully that he had a choice to accept or reject it. We have no doubt in the case at bar that he knew of those alternatives.
The decision of the board of review is affirmed.
Chief Judge Quinn concurs.