Opinion of the Court
Homer Ferguson, Judge:
The accused, on his plea of guilty, stands convicted by special court-martial of absence without leave, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. Immediately after announcing the sentence of a bad-conduct discharge, confinement at hard labor for six months, forfeiture of $65.00 per month for six months, and [140]*140reduction to the grade of hospital recruit, the president of the court-martial announced: “The court wishes to recommend clemency in view of the accused’s sworn statement.” The clemency recommended is appended to the record of trial and reads as follows:
“The court recommends clemency in the above-entitled case. The clemency recommended is that the portion of the sentence adjudging bad conduct discharge be remitted.
“The reasons for this recommendation are:
“That, at the time a recommendation for undesirable discharge was prepared, the accused had made a statement which was not incorporated with the recommendation and that he did not appear before a discharge advisory board;
“That the accused desires neither an undesirable discharge nor a bad conduct discharge;
“That the accused’s conduct prior to the difficulties which resulted in a recommendation for undesirable discharge was very good;
“That the accused has a high GOT, which indicates his high potential value to the Navy; and
“That the accused presents an excellent military appearance and bearing and desires to continue his service in the Navy.”
The convening authority approved the sentence and suspended the execution of the bad-conduct discharge, but did not provide for its remission.
This Court granted review on the issue whether the court impeached its own sentence against this accused.
The Government contends that United States v Doherty, 5 USCMA 287, 17 CMR 287, is controlling. The accused contends it is distinguishable. Although ■ Doherty, supra, and the instant case are quite similar, there are distinguishing features present in them which we feel justify a difference in result. There, as here, the court recommended clemency in the form of a remission of the discharge. However, the majority opinion in Doherty, supra, indicates that there was no information presented to show whether the clemency recommendation was voluntarily prepared by the court or solicited by defense counsel. The opinion noted, however, the duty imposed upon defense counsel by paragraph 48,j (1) of the Manual for Courts-Martial, United States, 1951, to prepare a recommendation for clemency in proper cases, and indicated it would not permit a recommendation prepared by defense counsel to impeach the verdict of the court. The majority there also said that the court members were apparently aware they need not impose a bad-conduct discharge and that, throughout the trial, counsel for the accused fought principally to save his client from being discharged. The Court, therefore, declined to find the court-martial had failed in its duty to adjudge an appropriate sentence.
Without specifically overruling Doh-erty, supra, we are constrained to limit it strictly to its facts. In the instant case, the clemency recommendation was clearly the voluntary act of the court-martial rather than something urged upon it by defense counsel. As noted earlier, the president of the court announced, contemporaneously with the sentence, that the court desired to recommend clemency. And the clemency recommended, although it was spelled out in a separate document sometime after the trial, was for a total and unqualified remission of the bad-conduct discharge. The voluntary announcement by the president at the time sentence was announced that the court desired to recommend clemency and the fact that their recommendation for remission of the bad-conduct discharge was unanimous presents something more than a possibility this is the type of clemency which the court had in mind all the time. We are unwilling to assume from the facts of this case that the clemency recommended was a product of trial defense counsel’s urging.
There is nothing present in the case to indicate the court members knew they did not need to impose a bad-conduct discharge. No instructions on sentence [141]*141were given.1 The question logically arises as to why a court-martial would impose a bad-conduct discharge and then, based on the same evidence, recommend a remission of it if they were not under the impression they were required to adjudge the discharge in the first instance. We do not treat this as an impeachment of the verdict by the court but rather as something more akin to an inconsistent or, at the least, ambiguous verdict. Impeachment of a verdict more properly re-fers to an attempt to show by evidence of jurors or others that the jury misunderstood their instructions, that the verdict was determined by chance, or the presence of misconduct or something of a similar nature. See, generally, 53 Am Jur, Trial, § 1105, et seq. No contention is made by the members of the court that the sentence as announced does not properly reflect their intention. What we have, rather, is an action so inherently inconsistent that we are not able to reconcile the court’s actions and are led to question whether they had a proper appreciation of their own duties and powers.
Law officers and counsel, especially trial counsel of a special court-martial (see Manual for Courts-Martial, supra, paragraph 76c), should be alert to their responsibility to insure that sentences are definite, certain, and in proper form.
The recommendation for clemency in the instant case was unmistakably based upon the same evidence already heard by the court before it imposed sentence. Paragraph 77a of the Manual, supra, states in part:
“Mitigating circumstances which could not be taken into consideration in determining the sentence may be the basis of a recommendation for clemency by individual members of the court.” [Emphasis supplied.]
Here, the mitigating circumstances expressed by the court in its recommendation for clemency in the form of remission of the bad-conduct discharge were presented to them before they announced their sentence. They could have reached the result apparently desired by the simple expedient of not including a bad-conduct discharge as a part of the sentence. We are unwilling to speculate as to their reasons for proceeding in the manner utilized, but find that the sentence as announced with a contemporary announcement of clemency in the form of a remission of a portion of the sentence just adjudged renders the sentence ambiguous.
We subscribe to the following language used by the Chief Judge in his dissent in Doherty, supra:
“Unqualifiedly, I would not sanction any curtailment of the absolute freedom of a court to make recommendations for clemency. Moreover, when such a recommendation is made, it should not subject the court to the risk of having its sentence set aside. But, the inconsistency here between the court’s action in imposing a bad-conduct discharge and its contemporaneous and unanimous recommendation for its complete remission is so striking and so unusual as to indicate that the court labored under a misapprehension of the full scope of its sentence power.”
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Opinion of the Court
Homer Ferguson, Judge:
The accused, on his plea of guilty, stands convicted by special court-martial of absence without leave, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. Immediately after announcing the sentence of a bad-conduct discharge, confinement at hard labor for six months, forfeiture of $65.00 per month for six months, and [140]*140reduction to the grade of hospital recruit, the president of the court-martial announced: “The court wishes to recommend clemency in view of the accused’s sworn statement.” The clemency recommended is appended to the record of trial and reads as follows:
“The court recommends clemency in the above-entitled case. The clemency recommended is that the portion of the sentence adjudging bad conduct discharge be remitted.
“The reasons for this recommendation are:
“That, at the time a recommendation for undesirable discharge was prepared, the accused had made a statement which was not incorporated with the recommendation and that he did not appear before a discharge advisory board;
“That the accused desires neither an undesirable discharge nor a bad conduct discharge;
“That the accused’s conduct prior to the difficulties which resulted in a recommendation for undesirable discharge was very good;
“That the accused has a high GOT, which indicates his high potential value to the Navy; and
“That the accused presents an excellent military appearance and bearing and desires to continue his service in the Navy.”
The convening authority approved the sentence and suspended the execution of the bad-conduct discharge, but did not provide for its remission.
This Court granted review on the issue whether the court impeached its own sentence against this accused.
The Government contends that United States v Doherty, 5 USCMA 287, 17 CMR 287, is controlling. The accused contends it is distinguishable. Although ■ Doherty, supra, and the instant case are quite similar, there are distinguishing features present in them which we feel justify a difference in result. There, as here, the court recommended clemency in the form of a remission of the discharge. However, the majority opinion in Doherty, supra, indicates that there was no information presented to show whether the clemency recommendation was voluntarily prepared by the court or solicited by defense counsel. The opinion noted, however, the duty imposed upon defense counsel by paragraph 48,j (1) of the Manual for Courts-Martial, United States, 1951, to prepare a recommendation for clemency in proper cases, and indicated it would not permit a recommendation prepared by defense counsel to impeach the verdict of the court. The majority there also said that the court members were apparently aware they need not impose a bad-conduct discharge and that, throughout the trial, counsel for the accused fought principally to save his client from being discharged. The Court, therefore, declined to find the court-martial had failed in its duty to adjudge an appropriate sentence.
Without specifically overruling Doh-erty, supra, we are constrained to limit it strictly to its facts. In the instant case, the clemency recommendation was clearly the voluntary act of the court-martial rather than something urged upon it by defense counsel. As noted earlier, the president of the court announced, contemporaneously with the sentence, that the court desired to recommend clemency. And the clemency recommended, although it was spelled out in a separate document sometime after the trial, was for a total and unqualified remission of the bad-conduct discharge. The voluntary announcement by the president at the time sentence was announced that the court desired to recommend clemency and the fact that their recommendation for remission of the bad-conduct discharge was unanimous presents something more than a possibility this is the type of clemency which the court had in mind all the time. We are unwilling to assume from the facts of this case that the clemency recommended was a product of trial defense counsel’s urging.
There is nothing present in the case to indicate the court members knew they did not need to impose a bad-conduct discharge. No instructions on sentence [141]*141were given.1 The question logically arises as to why a court-martial would impose a bad-conduct discharge and then, based on the same evidence, recommend a remission of it if they were not under the impression they were required to adjudge the discharge in the first instance. We do not treat this as an impeachment of the verdict by the court but rather as something more akin to an inconsistent or, at the least, ambiguous verdict. Impeachment of a verdict more properly re-fers to an attempt to show by evidence of jurors or others that the jury misunderstood their instructions, that the verdict was determined by chance, or the presence of misconduct or something of a similar nature. See, generally, 53 Am Jur, Trial, § 1105, et seq. No contention is made by the members of the court that the sentence as announced does not properly reflect their intention. What we have, rather, is an action so inherently inconsistent that we are not able to reconcile the court’s actions and are led to question whether they had a proper appreciation of their own duties and powers.
Law officers and counsel, especially trial counsel of a special court-martial (see Manual for Courts-Martial, supra, paragraph 76c), should be alert to their responsibility to insure that sentences are definite, certain, and in proper form.
The recommendation for clemency in the instant case was unmistakably based upon the same evidence already heard by the court before it imposed sentence. Paragraph 77a of the Manual, supra, states in part:
“Mitigating circumstances which could not be taken into consideration in determining the sentence may be the basis of a recommendation for clemency by individual members of the court.” [Emphasis supplied.]
Here, the mitigating circumstances expressed by the court in its recommendation for clemency in the form of remission of the bad-conduct discharge were presented to them before they announced their sentence. They could have reached the result apparently desired by the simple expedient of not including a bad-conduct discharge as a part of the sentence. We are unwilling to speculate as to their reasons for proceeding in the manner utilized, but find that the sentence as announced with a contemporary announcement of clemency in the form of a remission of a portion of the sentence just adjudged renders the sentence ambiguous.
We subscribe to the following language used by the Chief Judge in his dissent in Doherty, supra:
“Unqualifiedly, I would not sanction any curtailment of the absolute freedom of a court to make recommendations for clemency. Moreover, when such a recommendation is made, it should not subject the court to the risk of having its sentence set aside. But, the inconsistency here between the court’s action in imposing a bad-conduct discharge and its contemporaneous and unanimous recommendation for its complete remission is so striking and so unusual as to indicate that the court labored under a misapprehension of the full scope of its sentence power.”
It should be noted that our decision here should in no way discourage clemency recommendations where appropriate, nor does it affect the situation where the court-martial recommends clemency in the form of a suspension or conditional remission of a discharge. Recommendations for complete and unqualified remission of a portion, of a sentence are clearly distinguishable from recommendations for suspension. A court-martial does not have power to adjudge a suspended sen-fence. United States v Marshall, 2 USCMA 342, 8 CMR 142. If the suspension of a punitive discharge is considered appropriate, there is no way that the court-martial, acting alone, can accomplish it. Power to suspend is vested in the convening and supervisory authorities. ■ On the other hand, total remission of a portion [142]*142of the sentence can readily be accomplished by not adjudging that portion in the first instance.
We note also the unanimous decision of this Court in United States v Cavallaro, 3 USCMA 653, 14 CMR 71. There, a board of review, after reviewing the record, issued a form decision affirming the findings and sentence as approved by the convening authority. On the same date, the board of review attached to the record a memorandum, in letter form, addressed to The Judge Advocate General, recommending that substantial clemency be exercised in the case. In its memorandum, the board said in part:
“ ‘We consider that the sentence is probably excessive in view of the circumstances, but is not so in law, and we have no basis to say that it is in fact.’ ”
In returning the case to the board of review for clarification, we said in part:
“. . . [T]here is a duty on members of boards of review to act within their own sphere and they should not approve a sentence they consider excessive and then appeal to others to reduce. All persons who have any responsibility in fixing, affirming, or reviewing sentences should meet their responsibility by adjudging or affirming a fair and just sentence without regard to any further reductive action that might be taken by others who will subsequently act on the record.
“. . . There is little reason for it to recommend that some other authority take action that can be accomplished by it to reduce a sentence if it considers it to be excessive.”
And again:
“. . . The difficulty we encounter in this case is that we are unable to ascertain whether the members of the board of review understood clearly . . . [their powers].”
We consider what occurred in Cavallaro, supra, at the board of review level to be analogous to what took place here at the trial level. Here, we have the court-martial recommending that another power act to effectuate a result which the court itself could have accomplished simply by not awarding a bad-conduct discharge. And we find difficulty in ascertaining whether the court-martial members properly understood their powers.
For the reasons stated, the sentence is set aside and the record of trial returned to The Judge Advocate Genera] of the Navy. A rehearing on the sentence may be ordered.
Chief Judge Quinn concurs.