Opinion of the Court .
Homer Ferguson, Judge:
The accused, despite his plea of not guilty, was convicted by general court-martial of conspiracy to commit larceny and larceny, in violation of Articles 81 and 121, Uniform Code of Military Justice, 10 USC §§ 881 and 921, respectively. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for one year. The convening authority approved the findings and the sentence, but suspended the execution of the dishonorable discharge until the accused’s release from confinement or until completion of appellate review, whichever occurs later. The convening authority ordered the unsuspended portion of the sentence executed. The board of review set aside that portion of the convening authority’s action that ordered immediate execution of the sentence as vio-lative of the provisions of Article 71 (c), Uniform Code of Military Justice, 10 USC § 871, but otherwise approved the findings' of guilty and' the sentence as correct in law.and fact.
The sole issue presented on this appeal is whether the advice of the staff judge advocate to the convening authority in the post-trial review — wherein an allegedly incorrect standard for measuring the sufficiency of the evidence was applied — deprived the ac[168]*168cused of his right to a legally correct review of his case at the level of the convening authority.
It is not essential to the determination of this issue that a full recital of the facts be set forth. It will suffice to say that the sole issue at trial concerned whether the accused was involved in the alleged larceny and conspiracy. Testifying in his own behalf, he denied complicity in the crimes despite the assertions of two Korean conspirators who sought to implicate him. The court-martial, however, chose to disbelieve the accused and found him guilty as charged. The staff judge advocate, in his post-trial review, after summarizing the testimony adduced in behalf of both the prosecution and the defense, advised the convening authority under the separate section heading “Sufficiency of the evidence” as follows:
“The fact that the alleged larceny occurred was not contested; the sole issue in the case was whether or not the accused was involved. This issue could be resolved only by a comparison of the credibility of the witnesses, Kang and Mike, with the credibility of the accused. Since that issue was resolved against the accused by the court who observed the demeanor of all witnesses and heard all the evidence. first-hand, the undersigned may not disagree with that decision. There is sufficient evidence in the record of trial to sustain the findings of guilty.” [Emphasis supplied.]
It is the italicized portion of this advice which gives rise to the issue presently before us. Appellate defense counsel contend that this advice of the staff judge advocate erroneously informed the convening authority that he was bound by the findings of the court-martial. The Government, on the other hand, argues that the advice cannot be construed as having informed the convening authority that he was precluded from making an independent determination of the sufficiency of the evidence.
Article 61, Uniform Code of Military Justice, 10 USC § 861, provides — with regard to general courts-martial forwarded to the convening authority pursuant to Article 60, Uniform Code of Military Justice, 10 USC § 860 — that:
“The convening authority shall refer the record of each general court-martial to his staff judge advocate or legal officer, who shall submit his written opinion thereon to the convening authority.”
In pursuing the advisory function set forth in Article 61, supra, it is incumbent upon the staff judge advocate to apply the same legal standards that would be employed by the convening authority in determining a given legal problem. A staff judge advocate has no command authority and no test is to be applied by him except in his capacity as legal adviser to the commander. His advice, therefore, .must utilize the standards that the commander himself would use.
With regard to the convening authority’s reviewing power generally, Article 64, Uniform Code of Military Justice, 10 USC § 864, 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.” [Emphasis supplied.]
Further, the convening authority, in examining a given case for sufficiency of evidence “ is empowered to weigh evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. In considering the evidence, he will be guided by the principles stated in 74a and chapter XXVII. Unless he determines that a finding of guilty was established beyond a reasonable doubt by the competent evidence of record, he should disapprove the finding.” (Emphasis supplied.) (Paragraph 87a (3), Manual for Courts-Martial, United States, 1951.) Paragraph 74a, Manual for Courts-Martial, supra, sets forth standards which guide the court-martial in “making its findings.”
The staff judge advocate’s function [169]*169with respect to the advice contained in the post-trial review is set forth in the Manual for Courts-Martial, supra, at paragraph 85b, and is specific on form and content:
“The staff judge advocate or legal officer to whom a record of trial is referred for review and advice will submit a written review thereof to the convening authority. The review will include a summary of the evidence in the case, his opinion as to the adequacy and weight of the evidence and the effect of any error or irregularity respecting the proceedings, and a specific recommendation as to the action to be taken. Reasons for both the opinion and the recommendation will be stated. The convening authority may direct his staff judge advocate or legal officer to make a more comprehensive written review or supplementary oral or written reviews or reports.” [Emphasis supplied.]
The advice given in this case is unambiguous. The. staff judge advocate stated that he was bound by the findings of the court-martial on questions of fact. The convening authority, however, is not so limited and since the staff judge advocate has no authority or function but to advise his commander, we believe the advice was tantamount to informing the commander that he also was bound by the findings of the court-martial. While it is true that the convening authority should generally recognize that “the trial court saw and heard the witness” it is equally true that he is empowered and required to judge the credibility of witnesses, determine controverted questions of fact, and otherwise apply the trial level test of sufficiency rather than the more restrictive test reserved to appellate tribunals. He must be satisfied in his action that the accused is guilty beyond a reasonable doubt.
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Opinion of the Court .
Homer Ferguson, Judge:
The accused, despite his plea of not guilty, was convicted by general court-martial of conspiracy to commit larceny and larceny, in violation of Articles 81 and 121, Uniform Code of Military Justice, 10 USC §§ 881 and 921, respectively. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for one year. The convening authority approved the findings and the sentence, but suspended the execution of the dishonorable discharge until the accused’s release from confinement or until completion of appellate review, whichever occurs later. The convening authority ordered the unsuspended portion of the sentence executed. The board of review set aside that portion of the convening authority’s action that ordered immediate execution of the sentence as vio-lative of the provisions of Article 71 (c), Uniform Code of Military Justice, 10 USC § 871, but otherwise approved the findings' of guilty and' the sentence as correct in law.and fact.
The sole issue presented on this appeal is whether the advice of the staff judge advocate to the convening authority in the post-trial review — wherein an allegedly incorrect standard for measuring the sufficiency of the evidence was applied — deprived the ac[168]*168cused of his right to a legally correct review of his case at the level of the convening authority.
It is not essential to the determination of this issue that a full recital of the facts be set forth. It will suffice to say that the sole issue at trial concerned whether the accused was involved in the alleged larceny and conspiracy. Testifying in his own behalf, he denied complicity in the crimes despite the assertions of two Korean conspirators who sought to implicate him. The court-martial, however, chose to disbelieve the accused and found him guilty as charged. The staff judge advocate, in his post-trial review, after summarizing the testimony adduced in behalf of both the prosecution and the defense, advised the convening authority under the separate section heading “Sufficiency of the evidence” as follows:
“The fact that the alleged larceny occurred was not contested; the sole issue in the case was whether or not the accused was involved. This issue could be resolved only by a comparison of the credibility of the witnesses, Kang and Mike, with the credibility of the accused. Since that issue was resolved against the accused by the court who observed the demeanor of all witnesses and heard all the evidence. first-hand, the undersigned may not disagree with that decision. There is sufficient evidence in the record of trial to sustain the findings of guilty.” [Emphasis supplied.]
It is the italicized portion of this advice which gives rise to the issue presently before us. Appellate defense counsel contend that this advice of the staff judge advocate erroneously informed the convening authority that he was bound by the findings of the court-martial. The Government, on the other hand, argues that the advice cannot be construed as having informed the convening authority that he was precluded from making an independent determination of the sufficiency of the evidence.
Article 61, Uniform Code of Military Justice, 10 USC § 861, provides — with regard to general courts-martial forwarded to the convening authority pursuant to Article 60, Uniform Code of Military Justice, 10 USC § 860 — that:
“The convening authority shall refer the record of each general court-martial to his staff judge advocate or legal officer, who shall submit his written opinion thereon to the convening authority.”
In pursuing the advisory function set forth in Article 61, supra, it is incumbent upon the staff judge advocate to apply the same legal standards that would be employed by the convening authority in determining a given legal problem. A staff judge advocate has no command authority and no test is to be applied by him except in his capacity as legal adviser to the commander. His advice, therefore, .must utilize the standards that the commander himself would use.
With regard to the convening authority’s reviewing power generally, Article 64, Uniform Code of Military Justice, 10 USC § 864, 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.” [Emphasis supplied.]
Further, the convening authority, in examining a given case for sufficiency of evidence “ is empowered to weigh evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. In considering the evidence, he will be guided by the principles stated in 74a and chapter XXVII. Unless he determines that a finding of guilty was established beyond a reasonable doubt by the competent evidence of record, he should disapprove the finding.” (Emphasis supplied.) (Paragraph 87a (3), Manual for Courts-Martial, United States, 1951.) Paragraph 74a, Manual for Courts-Martial, supra, sets forth standards which guide the court-martial in “making its findings.”
The staff judge advocate’s function [169]*169with respect to the advice contained in the post-trial review is set forth in the Manual for Courts-Martial, supra, at paragraph 85b, and is specific on form and content:
“The staff judge advocate or legal officer to whom a record of trial is referred for review and advice will submit a written review thereof to the convening authority. The review will include a summary of the evidence in the case, his opinion as to the adequacy and weight of the evidence and the effect of any error or irregularity respecting the proceedings, and a specific recommendation as to the action to be taken. Reasons for both the opinion and the recommendation will be stated. The convening authority may direct his staff judge advocate or legal officer to make a more comprehensive written review or supplementary oral or written reviews or reports.” [Emphasis supplied.]
The advice given in this case is unambiguous. The. staff judge advocate stated that he was bound by the findings of the court-martial on questions of fact. The convening authority, however, is not so limited and since the staff judge advocate has no authority or function but to advise his commander, we believe the advice was tantamount to informing the commander that he also was bound by the findings of the court-martial. While it is true that the convening authority should generally recognize that “the trial court saw and heard the witness” it is equally true that he is empowered and required to judge the credibility of witnesses, determine controverted questions of fact, and otherwise apply the trial level test of sufficiency rather than the more restrictive test reserved to appellate tribunals. He must be satisfied in his action that the accused is guilty beyond a reasonable doubt.
We stated in United States v Massey, 5 USCMA 514, 519, 18 CMR 138, that we had “assiduously sought to preserve the fairness of the post-trial review demanded by the Code, and to assure that its procedures are accomplished in the manner intended by Congress.” In United States v Greenwalt, 6 USCMA 569, 20 CMR 285, when speaking of the pretrial advice of the staff judge advocate, we said:
“. . . This is an important pretrial protection accorded to an accused, and Congress had in mind something more than adherence to an empty ritual. It placed a duty on the staff judge advocate to make an independent and informed appraisal of the evidence as a predicate for his recommendation. His is the role of an adviser, and unless he reviews the record thoroughly and accurately, he cannot soundly advise the man who has to make the ultimate decision. Therefore, to the extent that the advice rendered by him is incomplete, ill-considered, or misleading as to any material matter, he has failed to comply with the statutory obligation which rests upon him.” [Emphasis supplied.]
The sentiment thus expressed with regard to Article 34, Uniform Code of Military Justice, 10 USC § 834, we feel is no less applicable when we consider the staff judge advocate’s duties pursuant to Article 61, supra. We disagree with the board of review’s conclusion in this case that the staff judge advocate was merely saying that he personally saw no reason to disagree with the court-martial’s findings. He not only has failed to fulfill his function as imposed by the Code and detailed by the Manual, but he has couched his “opinion” in terms of mandatory compliance with the court-martial’s findings of facts. The staff judge advocate does not say that he doesn’t disagree with the court-martial. He says specifically and unambiguously that he “may not disagree.” This was error.
We are not unmindful of the fact that a convening authority may completely disregard the advice of his staff judge advocate. Paragraph 85c, Manual for Courts-Martial, supra, however, provides that the convening authority should “ordinarily” accept the opinion of a staff judge advocate on questions respecting the adequacy of the evidence. In the case at bar the convening author[170]*170ity did not disregard the advice of his staff judge advocate. Our problem then resolves to this: Did there exist a fair risk that the convening authority’s action was prompted by reliance upon the erroneous advice of his legal adviser? We believe such a fair risk existed. United States v Doherty, 5 USCMA 287, 17 CMR 287.
Since the staff judge advocate considered himself bound by the court-martial’s findings, we conclude that the convening authority also considered himself bound. To hold otherwise would, in the language of the Green-wait case, supra, “ignore the practicalities of the situation.” In United States v Schuller, 5 USCMA 101, 17 CMR 101, we had occasion to discuss the duties of a staff judge advocate with respect to the pretrial advice and in the course of our opinion we said:
“We recognize that, under Article 84, the convening authority, not the Staff Judge Advocate, actually makes the final decisions as to whether the expected evidence is sufficient to support the charges, and whether they should be referred to trial. . . . Our interest is in the fact that the convening authority was given an advice which purported to show a legal evaluation of the sufficiency of the evidence. If we presume regularity, we cannot doubt that his decision to refer the charges to trial was substantially influenced by the advice of his Staff Judge Advocate. Yet, that advice was not based upon any examination of the evidence. Essentially, therefore, the convening authority himself did not make a proper determination of the sufficiency of the evidence.”
This reasoning applicable to the pretrial advice is equally valid with regard to the post-trial review.
In view of what we have said, we conclude that as a result of the staff judge advocate’s erroneous advice, the accused has not received that legally correct review of his case at the convening authority level that he is guaranteed by the Uniform Code of Military Justice and the Manual for Courts-Martial, supra. The decision of the board of review is reversed. In United States v Papciak, 7 USCMA 412, 22 CMR 202, we said that the officer to whom the record must be returned for corrective action in situations of this nature “should necessarily be determined by the particular facts of the case.” Here, we feel it is perfectly proper to return the case to the same convening authority, who will refer the record to his staff judge advocate for further review in accordance with the principles expressed in this opinion.
Chief Judge Quinn concurs.