Opinion of the Court
Robert E. Quinn, Chief Judge:
A board of review affirmed the accused’s conviction of sodomy and his sentence to a dishonorable discharge, total forfeitures, and confinement at hard labor for one year. We granted his petition for review to consider the effect of certain action taken by the convening authority.
The offense was committed on January 12, 1952, in the state of California. After referral of the charges to a general court-martial for trial, the accused was released to the California authorities for trial in a state court on an information alleging the same offense. On April 14, 1952, he was duly tried before a judge and jury in the Superior Court, County of San Diego, and was acquitted. On May 21, 1952, the military charges came on for hearing before a court-martial.
The law officer denied preliminary motions to dismiss the charge on the ground of double jeopardy, and that it was contrary to Navy policy to try an accused by court-martial when he had already been tried for the same offense by a civilian court. The accused then requested a continuance. The request was predicated upon the fact that, through regular naval channels, the accused had forwarded a letter addressed to the Secretary of the Navy, dated May 5, 1952, in which he referred to his acquittal by the California court and the Navy policy against a second trial by court-martial. The Secretary was requested to terminate the military proceedings against the accused. A week before the trial, the letter had passed the “second forwarding addressee,” but the accused did not know whether it reached the office of the Secretary of the Navy. The accused conceded that he was “entirely prepared” to proceed on the merits. Although trial counsel vigorously argued against the motion, it was granted by the law officer. The court then adjourned sine die.
On May 26, 1952, the court reconvened. The following letter from the convening authority, dated May 23, 1952, addressed to the law officer, was read into the record
“COMMANDANT’S OFFICE ELEVENTH NAVAL DISTRICT SAN DIEGO 30, CALIFORNIA
23 May 1952
From: Commandant, Eleventh Naval District
To: Lieutenant Commander John J. Varni, USNR, Law Officer, General Court-Martial, Eleventh Naval District
Subj; Trial of Edward Joseph Knud-son, ENC, U. S. Navy adjournment signed by, in the ease of
1. A perusal of the record of the subject named man indicates that on 21 May 1952 you adjourned the subject case Sine die upon the request of the accused, because he had forwarded a letter through channels to the Secretary of the Navy requesting that he not be brought to trial by General Court-Martial.
2. The subject named man was ordered tried by the Commandant, Eleventh Naval District on 19 February 1952. To date this order has not been cancelled, nor has the delay by the Commandant been authorized.
3. Section 58a, Manual for Courts-Martial, United States, 1951, states:
[590]*590‘A court-martial may, for reasonable cause, grant a continuance to any party for such time and as often as may appear to be just.’
Section 58e states:
‘Application should be made to the court if in session, otherwise to the convening authority, but an application to the court for an extended delay, if based on reasonable cause may be released [sic] by the court to the convening authority.’
The Naval Supplement to the Manual for Courts-Martial, United States, 1951, Par. 0102a (2), gives the Commandants of all Naval Districts authority to order General Courts-Martial.
4. The Commandant does not consider the desire of a man not to be tried a reasonable cause for delay. Although it is recognized that the Law Officer has wide discretion granting continuances or adjournments, the Commandant considers that whether or not Knudson is to be tried by General Court-Martial is an administrative decision and your ruling, therefore, is an abuse of discretion.
5. You are directed, unless there is reasonable cause for continuance, to resume the trial of Knudson as soon as practicable.
/s/ W. D. Baker
W: D. BAKER,
Rear Admiral, U. S. Navy, Commandant,
Eleventh Naval District,
San Diego, California.”
At the conclusion of the reading, the accused entered a plea in bar of trial on the ground that the convening authority’s letter constituted illegal interference with, and coercion of, the law officer in the performance of his duties. The law officer noted that in his “personal view ... it was not an abuse of discretion to grant the continuance,” but he denied the plea and directed the trial to proceed. The accused entered a plea of not guilty and unsucceessfully defended the case on the merits. We must now determine whether the action of the convening authority prejudiced the accused in a substantial right.
Responsibility for the proper conduct of a general court-martial trial rests upon the law officer. With certain exceptions, his rulings on interlocutory questions are final and constitute the rulings of the court. Article 51, Uniform Code of Military Justice, 50 USC § 626. In the application of these principles, we have held that the determination of whether a request for a continuance should or should not be granted rests within the sound discretion of the law officer. United States v. Nichols, 2 USCMA 27, 6 CMR 27; United States v. Plummer, 1 USCMA 373, 3 CMR 107; see also: United States v. Sizemore, 2 USCMA 572, 10 CMR 70. The standard used in the exercise of that discretion is “reasonable cause.” Article 40, Uniform Code of Military Justice, 50 USC § 615. Manual for Courts-Martial, United States, 1951, paragraph 58, page 82. A review of its exercise may be had only upon a clear showing that the discretion was abused. United States v. Plummer, supra.
A claim of abuse of discretion is usually reviewed on appeal as part of the entire case. In fact, we know of no authority in Federal judicial practice which permits an intermediate appeal for the sole purpose of reviewing that claim. Under Federal law, the right to appeal an interlocutory determination in a civil case does not include an appeal from a ruling on a continuance. 28 USC, Section 1292. In a criminal case an appeal lies only from the final decision. 28 USC, Section 1291. Rule 37, Federal Rules of Criminal Procedure. Copp v. United States, 168 F2d 190 (CA 1st Cir 1948); United States v. Domroe, 129 F2d 675 (CA2d Cir 1942). Moreover, the Government may appeal only if the final decision is adverse to it. See: 18 USC, Section 3731.
We have repeatedly held that Federal practice applies to courts-martial procedures if not incompatible with military law or with the special requirements of the military establishment. United States v. Fisher, 4 USCMA 152, [591]*59115 CMR 152.
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Opinion of the Court
Robert E. Quinn, Chief Judge:
A board of review affirmed the accused’s conviction of sodomy and his sentence to a dishonorable discharge, total forfeitures, and confinement at hard labor for one year. We granted his petition for review to consider the effect of certain action taken by the convening authority.
The offense was committed on January 12, 1952, in the state of California. After referral of the charges to a general court-martial for trial, the accused was released to the California authorities for trial in a state court on an information alleging the same offense. On April 14, 1952, he was duly tried before a judge and jury in the Superior Court, County of San Diego, and was acquitted. On May 21, 1952, the military charges came on for hearing before a court-martial.
The law officer denied preliminary motions to dismiss the charge on the ground of double jeopardy, and that it was contrary to Navy policy to try an accused by court-martial when he had already been tried for the same offense by a civilian court. The accused then requested a continuance. The request was predicated upon the fact that, through regular naval channels, the accused had forwarded a letter addressed to the Secretary of the Navy, dated May 5, 1952, in which he referred to his acquittal by the California court and the Navy policy against a second trial by court-martial. The Secretary was requested to terminate the military proceedings against the accused. A week before the trial, the letter had passed the “second forwarding addressee,” but the accused did not know whether it reached the office of the Secretary of the Navy. The accused conceded that he was “entirely prepared” to proceed on the merits. Although trial counsel vigorously argued against the motion, it was granted by the law officer. The court then adjourned sine die.
On May 26, 1952, the court reconvened. The following letter from the convening authority, dated May 23, 1952, addressed to the law officer, was read into the record
“COMMANDANT’S OFFICE ELEVENTH NAVAL DISTRICT SAN DIEGO 30, CALIFORNIA
23 May 1952
From: Commandant, Eleventh Naval District
To: Lieutenant Commander John J. Varni, USNR, Law Officer, General Court-Martial, Eleventh Naval District
Subj; Trial of Edward Joseph Knud-son, ENC, U. S. Navy adjournment signed by, in the ease of
1. A perusal of the record of the subject named man indicates that on 21 May 1952 you adjourned the subject case Sine die upon the request of the accused, because he had forwarded a letter through channels to the Secretary of the Navy requesting that he not be brought to trial by General Court-Martial.
2. The subject named man was ordered tried by the Commandant, Eleventh Naval District on 19 February 1952. To date this order has not been cancelled, nor has the delay by the Commandant been authorized.
3. Section 58a, Manual for Courts-Martial, United States, 1951, states:
[590]*590‘A court-martial may, for reasonable cause, grant a continuance to any party for such time and as often as may appear to be just.’
Section 58e states:
‘Application should be made to the court if in session, otherwise to the convening authority, but an application to the court for an extended delay, if based on reasonable cause may be released [sic] by the court to the convening authority.’
The Naval Supplement to the Manual for Courts-Martial, United States, 1951, Par. 0102a (2), gives the Commandants of all Naval Districts authority to order General Courts-Martial.
4. The Commandant does not consider the desire of a man not to be tried a reasonable cause for delay. Although it is recognized that the Law Officer has wide discretion granting continuances or adjournments, the Commandant considers that whether or not Knudson is to be tried by General Court-Martial is an administrative decision and your ruling, therefore, is an abuse of discretion.
5. You are directed, unless there is reasonable cause for continuance, to resume the trial of Knudson as soon as practicable.
/s/ W. D. Baker
W: D. BAKER,
Rear Admiral, U. S. Navy, Commandant,
Eleventh Naval District,
San Diego, California.”
At the conclusion of the reading, the accused entered a plea in bar of trial on the ground that the convening authority’s letter constituted illegal interference with, and coercion of, the law officer in the performance of his duties. The law officer noted that in his “personal view ... it was not an abuse of discretion to grant the continuance,” but he denied the plea and directed the trial to proceed. The accused entered a plea of not guilty and unsucceessfully defended the case on the merits. We must now determine whether the action of the convening authority prejudiced the accused in a substantial right.
Responsibility for the proper conduct of a general court-martial trial rests upon the law officer. With certain exceptions, his rulings on interlocutory questions are final and constitute the rulings of the court. Article 51, Uniform Code of Military Justice, 50 USC § 626. In the application of these principles, we have held that the determination of whether a request for a continuance should or should not be granted rests within the sound discretion of the law officer. United States v. Nichols, 2 USCMA 27, 6 CMR 27; United States v. Plummer, 1 USCMA 373, 3 CMR 107; see also: United States v. Sizemore, 2 USCMA 572, 10 CMR 70. The standard used in the exercise of that discretion is “reasonable cause.” Article 40, Uniform Code of Military Justice, 50 USC § 615. Manual for Courts-Martial, United States, 1951, paragraph 58, page 82. A review of its exercise may be had only upon a clear showing that the discretion was abused. United States v. Plummer, supra.
A claim of abuse of discretion is usually reviewed on appeal as part of the entire case. In fact, we know of no authority in Federal judicial practice which permits an intermediate appeal for the sole purpose of reviewing that claim. Under Federal law, the right to appeal an interlocutory determination in a civil case does not include an appeal from a ruling on a continuance. 28 USC, Section 1292. In a criminal case an appeal lies only from the final decision. 28 USC, Section 1291. Rule 37, Federal Rules of Criminal Procedure. Copp v. United States, 168 F2d 190 (CA 1st Cir 1948); United States v. Domroe, 129 F2d 675 (CA2d Cir 1942). Moreover, the Government may appeal only if the final decision is adverse to it. See: 18 USC, Section 3731.
We have repeatedly held that Federal practice applies to courts-martial procedures if not incompatible with military law or with the special requirements of the military establishment. United States v. Fisher, 4 USCMA 152, [591]*59115 CMR 152. Therefore, unless military law or necessity required an intermediate review of the law officer’s discretion in the grant or denial of a motion for continuance, the convening authority’s action here was illegal.
The Government argues that the convening authority is authorized to control the grant of a continuance by the provisions of paragraph 58 of the Manual for Courts-Martial, United States, 1951. The pertinent parts of the paragraph read as follows:
“58. CONTINUANCES. — a. General. — A court-martial may, for reasonable cause, grant a continuance to any party for such time and as often as may appear to be just (Art. 40). There is no limit to the number of continuances which may be granted.
“b. Postponement of trial. — The ■ necessity for a formal continuance may often be avoided by requesting the president to postpone the assembling of the court or by requesting the court to adjourn or to take a recess. As the law officer rules finally on any application for a continuance presented while the court is in session, the president of a general court-martial properly should obtain the advice of the law officer with respect to the request of a party for the postponement of the time for the assembling of the court.
“e. Application and action thereon. —Application should be made to the court if in session, otherwise to the convening authority, but an application to the court for an extended delay, if based on reasonable cause, may be referred by the court to the convening authority.
“Although the proper time for making an application to the court is after the accused is arraigned and before he pleads, the court may permit it to be made at any other time.”
At the outset, we are faced with a possible conflict between paragraph 58e of the Manual, and Article 40, Uniform Code of Military Justice, supra. The latter empowers the’law officer, not the convening authority, to act on an application for a continuance. Therefore, it may be that even when the court is not actually in session, an application for a continuance should be made to the court and not to the convening authority. However, we need not now decide whether this provision in the Manual may properly be reconciled with the Code requirement. Here, the application was made while the court was in session, and, under both the Code and the Manual, the law officer was the proper person to rule on it. He granted the application. Under well-settled principles, his ruling was not subject to review until the trial had been completed; and then only if the ruling was prejudicial to the accused. See Manual, paragraph 58cZ, page 83.
Justification for the convening authority’s action is also sought in that part of paragraph 58e, which provides that if the application is for “an extended delay . . . [it] may be referred by the court to the convening authority.” This too presents a serious conflict between the Code and the Manual. In effect, the Manual provision appears to substitute the discretion of the convening authority for the judgment of the court. Again, however, we need not attempt to reconcile the two provisions.
The accused’s application was not, in fact, referred to the convening authority for decision. Conse- quently, unless the Manual provision is to be construed as mandatory, the convening authority had no power or right to make any decision on the matter of a continuance. The language of the paragraph is plainly permissive and we find nothing in it which requires a forced construction. United States v. Merritt, 1 USCMA 56, 1 CMR 56.
Having no power to review the law officer’s grant of. a continuance, the convening authority should not inject himself into the proceedings. How- , ever honest may be his belief that he possesses the power, he cannot substitute his judgment for that of the law officer. He can refer the [592]*592charges to trial, and, if he wishes, he can in a proper case dissolve the court or change its personnel. However, none of these rights give him the power to control the law officer in the exercise of his statutory duties. In the words of the Manual, “An officer who has power to convene a general court-martial may determine the cases to be referred to it for trial and may dissolve it, but he cannot control the exercise by the court of the powers vested in it by law.” Ibid, paragraph 5a(6), page 8.
The Code and the Manual give the convening authority certain rights of review in a few limited instances, when the court-martial has acted so as to terminate finally the proceedings against the accused without, however, making any finding on his guilt or innocence. Thus, if a specification is dismissed on the ground that it fails to state an offense, the convening authority may return the record to the court for reconsideration of the ruling and any further appropriate action. Article 62 (a), Uniform Code of Military Justice, 50 USC § 649; Manual for Courts-Martial, United States, 1951, paragraph 67f, pages 98-99. See also: Manual, supra, paragraph 1226, page 203. However, these rights do not give the convening authority the power to review interlocutory rulings made by the court while the case is in progress; and this is particularly true when the Code expressly regulates the procedure, as it does in this case.
The record clearly shows that the law officer yielded to the pressure of the convening authority. “It is the personal view of the law officer,” he said, “that it was not an abuse of discretion to grant the continuance when the continuance was granted.” Nevertheless, he ordered the trial to proceed. In so doing, he abdicated his powers to the convening authority. Manifestly, this was error. United States v. Self, 3 USCMA 568, 13 CMR 124.
However, a finding of error is not conclusive; we must still consider the nature and effect of the error. We have held that not every erroneous ruling by the law officer requires application of the doctrine of general prejudice. United States v. Berry, 1 USCMA 235, 2 CMR 141; United States v. Self, supra. In the Self case we held that two appeals to the staff judge advocate for a ruling on issues presented to the president of a special court in the course of trial should be judged by the standards of specific prejudice. Thus, in this case we should determine whether the error prejudiced the accused in a substantial right.
When the charges were referred to trial by court-martial, two naval policies required consideration. First, the accused could not be released to state officials for trial in a state coui't without specific authorization from the Secretary of the Navy. Section 0702, Naval Supplement to the Manual for Courts-Martial, United States, 1951. This policy was important to the accused because under military law maximum confinement for the offense charged is five years, while under California law, it is fifteen years. California Penal Code, section 288a. We presume that the convening authority acted in accordance with the first policy before he turned over the accused to the California authorities.
The second policy provided that if an accused was convicted and punished by a state court he should not again be tried by court-martial for the same offense. CMO 1-1941, 22; CMO 5-1945, 203. A literal adherence to this policy may not have prevented further proceedings against the accused. On the other hand, it was reasonable to believe that the policy extended to a situation in which the accused was tried and acquitted by the state court. As a matter of fact, that was the precise determination by the Secretary of the Navy some months after the trial. In a letter of instruction to all ships and stations (SECNAY INSTRUCTION 5810.1 JAG:I:2 CT:au 5 March 1953) he said:
“Subj: Policy regarding trial by courts-martial of persons previously tried by civil courts for the same act or acts.
“Ref: (a) CMO 5-1945, 203.
“1. Purpose. The purpose of this [593]*593Instruction is to modify the policy set forth in reference (a) regarding trial by courts-martial of persons in the naval service who have previously been tried in civil courts for the same act or acts, and to provide procedures to be followed in carrying out the modified policy.
“2. Modified Policy. A person in the naval service who has been tried in a State court, whether convicted or acquitted, shall not be tried by court-martial for the same act or acts except in those unusual cases where trial by court-martial is considered essential in the interests of justice, discipline, and proper administration within the naval service. Such unusual cases, however, shall not be referred to trial without first obtaining permission from the Secretary of the Navy. Requests for permission to refer such unusual cases to trial shall include a full report of all the attendant circumstances and shall be forwarded to the Secretary via the officer having general court-martial authority over the command, and the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate.”
It may be that the convening authority believed that the Navy policy should not be applied. But in any event, a departure from a service policy would not prevent application of specific provisions of the Code or Manual. United States v. Gomes, 3 USCMA 232, 11 CMR 232. However, that is not the issue here. The real question is whether, in the view of the Navy policy, it was reasonable for the law officer to grant a continuance until the Secretary of the Navy could reply to the accused’s request. We think that it was.
The Government argues that the convening authority acted in the best interests of the command. Perhaps he did. But that is beside the question. The Manual expressly provides that “he cannot control the exercise by the court of the powers vested in it by law.” Manual, supra, paragraph 5a(6), page 8. His action constituted illegal interference with the law officer in the exercise of his judicial functions. This interference resulted in prejudice to the accused by depriving him of the opportunity of having the Secretary of the Navy consider his request for the termination of further proceedings against him, which we regard as a substantial right.
The decision of the board of review is reversed and a rehearing is ordered.