Opinion
FLETCHER, Judge:
At his special court-martial with members, the appellant was found guilty of conspiracy to disobey an order and disobeying an order, in violation of Articles 81 and 91, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 891, respectively. After a finding of guilty the Marine Corps court members sentenced him to a bad-conduct discharge, confinement at hard labor for 6 months, forfeiture of $200.00 pay per month for 6 months, and reduction to the grade of E-3. The convening authority approved the findings, but suspended the confinement at hard labor in excess of 3 months. The United States Navy Court of Military Review disapproved the bad-conduct dis[377]*377charge as a matter of sentence appropriateness. We granted the issue to consider whether Major General Fleming, the convening authority, was disqualified from taking the post-trial action in the appellant’s case. We are compelled to answer this question in the affirmative and to direct the appointment of another general court-martial authority to perform these post-trial functions.
An examination of the factual setting of this appeal is central to our jural resolution of the legal issue presented. Rapid breakdown of morale in a Marine Drum and Bugle Corps led to the calculated refusal of its members to respond to a motion to play at a minor ceremony in Jackson Square, New Orleans. Major General Fleming, presiding at the ceremony where this so-called “no-blow” took place, had previously engaged in a vigorous attempt to prevent the Drum and Bugle Corps from being transferred-to Twenty-Nine Palms, California, under an economy measure. By personal intervention with the Commandant of the Marine Corps and by at least two letters, he forcefully pleaded for retention of the unit because of the interest it generated in potential new enlistees and its utility in providing ceremonial music for dignitaries. In his words, “you can take away my gusto, but don’t take away my” Drum and Bugle Corps. In this effort, Major General Fleming was initially successful; the Commandant reversed his initial transfer decision. However, on the very day of the incident, a laconic naval message was received: “The ref [the earlier reversal of the move decision] is cancelled.”
There is evidence of record that the General reacted strongly to the failure of the Drum and Bugle Corps to play. Corporal Multen testified that while driving the General away from the ceremony, he heard him comment “that he had never seen anything like that before.” There followed in the General’s office a period of intense activity. Several civilians called on the telephone requesting information and an unusual number of officers met with Major General Fleming. Major Cutlip described a meeting with the General, thus: “His initial appearance to me was one of shock and disbelief, this being at the first ... my first meeting with him on that day.”
Sergeant Lampley, a member of the Drum and Bugle Corps had described a meeting of the members with Major General Fleming after the incident. He told them that “because he had put his neck on the line to keep the drum and bugle corps” in New Orleans, he was disturbed, “disappointed and ashamed of what had happened.” Sergeant Lampley testified (although this was contested by other testimony) that the General told them that the amount of punishment they received “would depend on ... how much the news media” came to know “about the incident.” Thereafter, he extracted individual promises from each member that he would not fail to play at three upcoming performances. According to one account of the convening authority’s words to them, they “would be playing for [their] lives.”
Extensive negative publicity did result from the “no-blow” incident involving the Drum and Bugle Corps, as is shown by a number of news reports appearing as appellate exhibits in the record of trial. Approximately 26 members of the Drum and Bugle Corps were ultimately disciplined for the incident. More severe discipline was imposed on those of higher rank who did not exercise needed leadership.
Recently, in United States v. Conn, 6 M.J. 351 (C.M.A.1979), the majority of this Court addressed, inter alia, the legal issue granted in the instant case. Considering whether the convening authority was disqualified from referring charges and whether he was disqualified from the post-trial review, we held that the facts supported the conclusion that the convening authority’s involvement was merely official. The facts demonstrated that the convening authority held briefings, read witness statements, conferred with the Staff Judge Advocate and the trial counsel, directed the accused’s immediate arrest, ordered a helicopter to accomplish the same, and prevented the appellant’s release from pretrial confinement. Id. at 354. [378]*378Furthermore, United States v. Conn, supra, examined the post-trial review disqualification issue we consider here and concluded he was qualified for two reasons: (1) His involvement was only official, not personal; and (2) “no clear predisposition by the convening authority as to the salient issue is clearly indicated in the record of trial.” Id. at 354-55.
But the legal question we are here called upon to answer arose in the first term of this Court in United States v. Gordon, 1 U.S.C.M.A. 255, 2 C.M.R. 161 (1952). There an accused was convicted of the burglary of one General’s house and the attempted burglary of another — the occupant of the latter was the convening authority referring the charges and approving the results of the general court-martial. The second charge of attempted burglary was subsequently dismissed and the accused was tried and convicted of the first offense. Under Article of War 8, the Court held that the convening authority was an “accuser” and thus disqualified to appoint the court. The Court further held that “the right to an impartial review is an important right which must be recognized in the military judicial system and an accused is entitled to have the record reviewed and the limits of his sentence fixed by one who is free from any connection with the controversy.” Id. at 262, 2 C.M.R. at 168. This is the standard which compels us to rule that Major General Fleming was disqualified to perform the post-trial review function in this case.
Not unlike our ruling under the facts in Brookins v. Cullins, 23 U.S.C.M.A. 216, 49 C.M.R. 5 (1974), we do not base our decision in this case merely on the convening authority’s presence at the locus of the crime. The true test of a convening authority’s disqualification to refer charges or to perform post-trial review continues to be “whether, upon the particular facts and circumstances ... a reasonable person would impute to him a personal feeling or interest in the outcome of the litigation.” United States v. Gordon, supra at 260, 2 C.M.R. at 166.
We do not attempt here to psychologize the mind of the convening authority nor should this opinion be read as a criticism of this convening authority’s animus or decision-making. We only perceive a reasonable probability that his review of the matter reflected personal interest. Cf. United States v. Conn, supra. We reiterate merely that “[c]onvening [authorities] should remember that there are easy and adequate means to have” reviewing functions performed by an authority with no personal feeling in the outcome of the litigation.
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Opinion
FLETCHER, Judge:
At his special court-martial with members, the appellant was found guilty of conspiracy to disobey an order and disobeying an order, in violation of Articles 81 and 91, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 891, respectively. After a finding of guilty the Marine Corps court members sentenced him to a bad-conduct discharge, confinement at hard labor for 6 months, forfeiture of $200.00 pay per month for 6 months, and reduction to the grade of E-3. The convening authority approved the findings, but suspended the confinement at hard labor in excess of 3 months. The United States Navy Court of Military Review disapproved the bad-conduct dis[377]*377charge as a matter of sentence appropriateness. We granted the issue to consider whether Major General Fleming, the convening authority, was disqualified from taking the post-trial action in the appellant’s case. We are compelled to answer this question in the affirmative and to direct the appointment of another general court-martial authority to perform these post-trial functions.
An examination of the factual setting of this appeal is central to our jural resolution of the legal issue presented. Rapid breakdown of morale in a Marine Drum and Bugle Corps led to the calculated refusal of its members to respond to a motion to play at a minor ceremony in Jackson Square, New Orleans. Major General Fleming, presiding at the ceremony where this so-called “no-blow” took place, had previously engaged in a vigorous attempt to prevent the Drum and Bugle Corps from being transferred-to Twenty-Nine Palms, California, under an economy measure. By personal intervention with the Commandant of the Marine Corps and by at least two letters, he forcefully pleaded for retention of the unit because of the interest it generated in potential new enlistees and its utility in providing ceremonial music for dignitaries. In his words, “you can take away my gusto, but don’t take away my” Drum and Bugle Corps. In this effort, Major General Fleming was initially successful; the Commandant reversed his initial transfer decision. However, on the very day of the incident, a laconic naval message was received: “The ref [the earlier reversal of the move decision] is cancelled.”
There is evidence of record that the General reacted strongly to the failure of the Drum and Bugle Corps to play. Corporal Multen testified that while driving the General away from the ceremony, he heard him comment “that he had never seen anything like that before.” There followed in the General’s office a period of intense activity. Several civilians called on the telephone requesting information and an unusual number of officers met with Major General Fleming. Major Cutlip described a meeting with the General, thus: “His initial appearance to me was one of shock and disbelief, this being at the first ... my first meeting with him on that day.”
Sergeant Lampley, a member of the Drum and Bugle Corps had described a meeting of the members with Major General Fleming after the incident. He told them that “because he had put his neck on the line to keep the drum and bugle corps” in New Orleans, he was disturbed, “disappointed and ashamed of what had happened.” Sergeant Lampley testified (although this was contested by other testimony) that the General told them that the amount of punishment they received “would depend on ... how much the news media” came to know “about the incident.” Thereafter, he extracted individual promises from each member that he would not fail to play at three upcoming performances. According to one account of the convening authority’s words to them, they “would be playing for [their] lives.”
Extensive negative publicity did result from the “no-blow” incident involving the Drum and Bugle Corps, as is shown by a number of news reports appearing as appellate exhibits in the record of trial. Approximately 26 members of the Drum and Bugle Corps were ultimately disciplined for the incident. More severe discipline was imposed on those of higher rank who did not exercise needed leadership.
Recently, in United States v. Conn, 6 M.J. 351 (C.M.A.1979), the majority of this Court addressed, inter alia, the legal issue granted in the instant case. Considering whether the convening authority was disqualified from referring charges and whether he was disqualified from the post-trial review, we held that the facts supported the conclusion that the convening authority’s involvement was merely official. The facts demonstrated that the convening authority held briefings, read witness statements, conferred with the Staff Judge Advocate and the trial counsel, directed the accused’s immediate arrest, ordered a helicopter to accomplish the same, and prevented the appellant’s release from pretrial confinement. Id. at 354. [378]*378Furthermore, United States v. Conn, supra, examined the post-trial review disqualification issue we consider here and concluded he was qualified for two reasons: (1) His involvement was only official, not personal; and (2) “no clear predisposition by the convening authority as to the salient issue is clearly indicated in the record of trial.” Id. at 354-55.
But the legal question we are here called upon to answer arose in the first term of this Court in United States v. Gordon, 1 U.S.C.M.A. 255, 2 C.M.R. 161 (1952). There an accused was convicted of the burglary of one General’s house and the attempted burglary of another — the occupant of the latter was the convening authority referring the charges and approving the results of the general court-martial. The second charge of attempted burglary was subsequently dismissed and the accused was tried and convicted of the first offense. Under Article of War 8, the Court held that the convening authority was an “accuser” and thus disqualified to appoint the court. The Court further held that “the right to an impartial review is an important right which must be recognized in the military judicial system and an accused is entitled to have the record reviewed and the limits of his sentence fixed by one who is free from any connection with the controversy.” Id. at 262, 2 C.M.R. at 168. This is the standard which compels us to rule that Major General Fleming was disqualified to perform the post-trial review function in this case.
Not unlike our ruling under the facts in Brookins v. Cullins, 23 U.S.C.M.A. 216, 49 C.M.R. 5 (1974), we do not base our decision in this case merely on the convening authority’s presence at the locus of the crime. The true test of a convening authority’s disqualification to refer charges or to perform post-trial review continues to be “whether, upon the particular facts and circumstances ... a reasonable person would impute to him a personal feeling or interest in the outcome of the litigation.” United States v. Gordon, supra at 260, 2 C.M.R. at 166.
We do not attempt here to psychologize the mind of the convening authority nor should this opinion be read as a criticism of this convening authority’s animus or decision-making. We only perceive a reasonable probability that his review of the matter reflected personal interest. Cf. United States v. Conn, supra. We reiterate merely that “[c]onvening [authorities] should remember that there are easy and adequate means to have” reviewing functions performed by an authority with no personal feeling in the outcome of the litigation. United States v. Gordon, supra at 261, 2 C.M.R. at 167.
As that opinion further stated:
The reviewing authority is vested with great power over the proceedings of a court-martial. He is at liberty to approve or disapprove the finding of guilty or to approve only so much of a finding of guilty of a particular offense as involves a finding of guilty of the lesser included offense, and he has the power to approve or disapprove the whole or any part of a sentence. Such power should not be vested in a person who is interested in the litigation.
Id. at 261-62, 2 C.M.R. at 168.
It need not detain us here that the law of United States v. Gordon, supra, arose in the context of a challenge to the commander’s disqualification both to refer the charges to court-martial and his disqualification to perform the necessary post-trial review functions. While both issues were challenged in Gordon and its progeny, the connection is factually accidental and unnecessary for the instant successful assertion of error.
We do not enter into a debate here over whether the referral of these charges by Colonel Rapp was a surrogate referral on behalf of an accuser-in-fact, the convening authority. We merely are compelled to apply the Gordon standard to the qualification of this convening authority to exercise post-trial review functions. Under the facts presented, we perceive a reasonable probability that this convening authority was [379]*379personally interested in the outcome of the litigation.
The decision of the United States Navy Court of Military Review is reversed. The action of the convening authority is set aside. The record of trial is returned to the Judge Advocate General of the Navy for submission to a different general court-martial convening authority for a new review and action.