Opinion of the Court
HomeR FeRguson, Judge:
Initially, this accused was found guilty by general court-martial of sixteen worthless check offenses, in violation of Uniform Code of Military Justice, Article 134,10 USC § 934. He was sentenced to a bad-conduct discharge, partial forfeitures, and confinement at hard labor for twelve months. Because of instructional errors affecting the sentence adjudged, the convening authority directed a rehearing before a special court-martial on the sentence alone. At the rehearing, accused was sentenced to a bad-conduct discharge. The convening authority and the officer exercising general court-martial jurisdiction approved the sentence and forwarded the record of trial for review by a board of review. That body affirmed the findings but expressed doubt concerning the impartiality of an officer participating in the post-trial review. Believing the accused had been prejudiced, the board “recommended” to The Judge Advocate General of the Air Force that the record of trial be forwarded to a different convening authority for new post-trial proceedings. Acting upon that “recommendation,” The Judge Advocate General of the Air Force forwarded the record of trial to the Commander, Air Photographic and Charting Service, Orlando Air Force Base, Florida, for further review. In the letter of transmittal, Major General Harmon made the following comment:
“1. The Board of Review has completed its review of the record of trial in the case of the above-named accused. I do not deem it appropriate to take action pursuant to Article 67 (b)(2), although the correctness of the determination of the Board of Review that the officer who conducted the post-trial interview had a disqualifying connection with this case is questionable. I have decided not to certify the case to the United States Court of Military Appeals because considerable time has already elapsed in processing it and certification would further delay final action. Under all the circumstances, I have de[226]*226termined that this ease should be concluded in the most expeditious manner.
“2. You are hereby advised to take action in accordance with the decision of the Board of Review.
/s/ Reginald C. Harmon /t/ REGINALD C. HARMON Major General, USAF The Judge Advocate General United States Air Force.”
Thereafter, a new review was prepared. Pursuant to its recommendation, the new convening authority approved the sentence. The findings and sentence were again affirmed by the board of review, and we granted accused’s petition in this Court on the issues whether he was prejudiced by the receipt in evidence of the deposition of Jose Bello, in which the services of an accuser-in-fact were used as interpreter, and whether he was deprived of his right to an impartial post-trial review by the quoted comments of General Harmon in the letter transmitting the record of trial. These matters, as well as another serious deficiency, will be discussed seriatim.
I
Briefly stated, the evidence tends to establish that the accused, stationed in Ciudad Trujillo, Dominican Republic, cashed sixteen worthless checks at the Hotel Paz. Prior to the trial, the deposition of Colonel Jose Bello, a Dominican official and manager of the Hotel Paz, was obtained for use by the prosecution. A Major Greene served as interpreter in the taking of the deposition. Colonel Bello deposed that he knew the accused and had personally examined, initialed and approved for payment the sixteen checks in question. Major Greene was the accused’s immediate commanding officer at the time of the offenses; was active in the preparation and preference of charges against the accused; and testified at the trial as a prosecution witness. In a statement made during the Article 32 investigation, Major Greene expressed his belief that accused’s misconduct called for “severe disciplinary action.” In an out-of-court hearing at the trial, Major Greene indicated he informally investigated the allegations against the accused; made a full report to his superiors in the United States; gathered pertinent evidence; .and arranged to have charges preferred as soon as the accused had made restitution. He also testified that, had his superior directed the accused’s immediate transfer from the Dominican Republic, he would have forthwith preferred charges.
Under the circumstances, it can hardly be argued that Major Greene was not an accuser-in-fact. While he did not prefer the formal charges, he indicated an interest in the case which far transcended merely official action. Code, supra, Article 1, 10 USC § 801; Manual for Courts-Martial, United States, 1951, paragraph 5; United States v Gordon, 1 USCMA 255, 2 CMR 161.
In United States v Moeller, 8 USCMA 275, 24 CMR 85, we were confronted with the problem of determining whether the official reporter of a court-martial was disqualified so to act by reason of the fact that he was also the statutory accuser. We were unanimous in our holding that even a nominal accuser might not act as reporter. Speaking for the Court concerning this issue, Judge Latimer stated:
“. . . [I] t is to be remembered that a great mass of evidence may be placed in a record, and it is impossible for anyone but the reporter to record accurately all of the testimony. We, therefore, conclude that it is contrary to the concept of a fair trial and an adequate review to have an actual accuser assigned as reporter. Likewise, as a general proposition, statutory, or what we shall designate as nominal, accusers should not be detailed as reporters. The potentialities for harm to the system are great if one who appears on the record as an accuser can be a key party to the preservation of the rights of an accused.” [United States v Moeller, supra, at pages 276-277.] [Emphasis supplied.]
The Government contends, however, that an interpreter-accuser should be treated differently from a reporter-[227]*227accuser. It argues that our decision in United States v Rayas, 6 USCMA 479, 20 CMR 195, indicates that we distinguish between one whose actions in formulating a record import verity and finality and one who merely serves as a translator.
United States v Rayas, supra, does not support the Government’s position. There we dealt solely with the problem of testing the accuracy of an interpreter’s translation. While we pointed out that the right of an accused to monitor the interpreter’s action was not so basic that it involved military due process, we were not there confronted with the question of his disqualification.
The reasons advanced for our decision in United States v Moeller, supra, are even more strongly applicable to interpreters, particularly those who assist in the taking of depositions.1 In the case of a reporter-accuser, counsel is at least to some degree familiar with the proceedings which have transpired. Thus, he has an opportunity upon his examination of the record to determine whether the report of the trial is grossly inaccurate. While we held that possible safeguard inadequate in United States v Moeller, supra, even that degree of protection is totally absent in the case of an interpreter. In the latter instance, counsel is normally unfamiliar with the foreign language in which the witness gives his testimony. Hence, counsel are left entirely at the mercy of the translator.
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Opinion of the Court
HomeR FeRguson, Judge:
Initially, this accused was found guilty by general court-martial of sixteen worthless check offenses, in violation of Uniform Code of Military Justice, Article 134,10 USC § 934. He was sentenced to a bad-conduct discharge, partial forfeitures, and confinement at hard labor for twelve months. Because of instructional errors affecting the sentence adjudged, the convening authority directed a rehearing before a special court-martial on the sentence alone. At the rehearing, accused was sentenced to a bad-conduct discharge. The convening authority and the officer exercising general court-martial jurisdiction approved the sentence and forwarded the record of trial for review by a board of review. That body affirmed the findings but expressed doubt concerning the impartiality of an officer participating in the post-trial review. Believing the accused had been prejudiced, the board “recommended” to The Judge Advocate General of the Air Force that the record of trial be forwarded to a different convening authority for new post-trial proceedings. Acting upon that “recommendation,” The Judge Advocate General of the Air Force forwarded the record of trial to the Commander, Air Photographic and Charting Service, Orlando Air Force Base, Florida, for further review. In the letter of transmittal, Major General Harmon made the following comment:
“1. The Board of Review has completed its review of the record of trial in the case of the above-named accused. I do not deem it appropriate to take action pursuant to Article 67 (b)(2), although the correctness of the determination of the Board of Review that the officer who conducted the post-trial interview had a disqualifying connection with this case is questionable. I have decided not to certify the case to the United States Court of Military Appeals because considerable time has already elapsed in processing it and certification would further delay final action. Under all the circumstances, I have de[226]*226termined that this ease should be concluded in the most expeditious manner.
“2. You are hereby advised to take action in accordance with the decision of the Board of Review.
/s/ Reginald C. Harmon /t/ REGINALD C. HARMON Major General, USAF The Judge Advocate General United States Air Force.”
Thereafter, a new review was prepared. Pursuant to its recommendation, the new convening authority approved the sentence. The findings and sentence were again affirmed by the board of review, and we granted accused’s petition in this Court on the issues whether he was prejudiced by the receipt in evidence of the deposition of Jose Bello, in which the services of an accuser-in-fact were used as interpreter, and whether he was deprived of his right to an impartial post-trial review by the quoted comments of General Harmon in the letter transmitting the record of trial. These matters, as well as another serious deficiency, will be discussed seriatim.
I
Briefly stated, the evidence tends to establish that the accused, stationed in Ciudad Trujillo, Dominican Republic, cashed sixteen worthless checks at the Hotel Paz. Prior to the trial, the deposition of Colonel Jose Bello, a Dominican official and manager of the Hotel Paz, was obtained for use by the prosecution. A Major Greene served as interpreter in the taking of the deposition. Colonel Bello deposed that he knew the accused and had personally examined, initialed and approved for payment the sixteen checks in question. Major Greene was the accused’s immediate commanding officer at the time of the offenses; was active in the preparation and preference of charges against the accused; and testified at the trial as a prosecution witness. In a statement made during the Article 32 investigation, Major Greene expressed his belief that accused’s misconduct called for “severe disciplinary action.” In an out-of-court hearing at the trial, Major Greene indicated he informally investigated the allegations against the accused; made a full report to his superiors in the United States; gathered pertinent evidence; .and arranged to have charges preferred as soon as the accused had made restitution. He also testified that, had his superior directed the accused’s immediate transfer from the Dominican Republic, he would have forthwith preferred charges.
Under the circumstances, it can hardly be argued that Major Greene was not an accuser-in-fact. While he did not prefer the formal charges, he indicated an interest in the case which far transcended merely official action. Code, supra, Article 1, 10 USC § 801; Manual for Courts-Martial, United States, 1951, paragraph 5; United States v Gordon, 1 USCMA 255, 2 CMR 161.
In United States v Moeller, 8 USCMA 275, 24 CMR 85, we were confronted with the problem of determining whether the official reporter of a court-martial was disqualified so to act by reason of the fact that he was also the statutory accuser. We were unanimous in our holding that even a nominal accuser might not act as reporter. Speaking for the Court concerning this issue, Judge Latimer stated:
“. . . [I] t is to be remembered that a great mass of evidence may be placed in a record, and it is impossible for anyone but the reporter to record accurately all of the testimony. We, therefore, conclude that it is contrary to the concept of a fair trial and an adequate review to have an actual accuser assigned as reporter. Likewise, as a general proposition, statutory, or what we shall designate as nominal, accusers should not be detailed as reporters. The potentialities for harm to the system are great if one who appears on the record as an accuser can be a key party to the preservation of the rights of an accused.” [United States v Moeller, supra, at pages 276-277.] [Emphasis supplied.]
The Government contends, however, that an interpreter-accuser should be treated differently from a reporter-[227]*227accuser. It argues that our decision in United States v Rayas, 6 USCMA 479, 20 CMR 195, indicates that we distinguish between one whose actions in formulating a record import verity and finality and one who merely serves as a translator.
United States v Rayas, supra, does not support the Government’s position. There we dealt solely with the problem of testing the accuracy of an interpreter’s translation. While we pointed out that the right of an accused to monitor the interpreter’s action was not so basic that it involved military due process, we were not there confronted with the question of his disqualification.
The reasons advanced for our decision in United States v Moeller, supra, are even more strongly applicable to interpreters, particularly those who assist in the taking of depositions.1 In the case of a reporter-accuser, counsel is at least to some degree familiar with the proceedings which have transpired. Thus, he has an opportunity upon his examination of the record to determine whether the report of the trial is grossly inaccurate. While we held that possible safeguard inadequate in United States v Moeller, supra, even that degree of protection is totally absent in the case of an interpreter. In the latter instance, counsel is normally unfamiliar with the foreign language in which the witness gives his testimony. Hence, counsel are left entirely at the mercy of the translator. Moreover, where the latter is the accuser, he may, consciously or unconsciously, shade the declarations of a witness in such a fashion that the prosecution’s case is substantially strengthened. These considerations lead us to conclude that an accuser, whether actual or nominal, is disqualified from acting as an interpreter in the case in which he is interested. It follows, therefore, that Colonel Bello’s deposition should not have been admitted in evidence.
II
The second issue with which we are confronted concerns the prejudicial effect of General Harmon’s comments in the letter transmitting the record of trial for further post-trial proceedings. While we impute no improper motive to The Judge Advocate General of the Air Force, we are certain there is a fair risk that his expression of opinion concerning the propriety of the board of review’s action prejudicially affected the accused’s substantial right to an impartial consideration of the question of the sentence to be approved.
As the senior military legal advisor in the Department of the Air Force, it can scarcely be contended that General Harmon’s opinions do not carry substantial weight with his military subordinates. Thus, his belief that the board erred in its conclusion may well have been interpreted by the Staff Judge Advocate to whom the record was eventually referred to mean that the action which he and his commander were required to undertake was no more than a formality. The accused’s entitlement to an impartial post-trial review, however, is a substantial right and the critical first step on the appellate ladder. United States v Wilson, 9 USCMA 223, 26 CMR 3; United States v Griffin, 8 USCMA 206, 24 CMR 16. He is entitled to the completion of this stage without the possibility that it was influenced by the opinion of superior authority. Hence, we unhesitatingly condemn the inclusion of the quoted comments in the letter of transmittal. In reaching this conclusion, we brush to one side the Government’s arguments that The Judge Advocate General did no more here than he does by certifying to this Court a question concerning the decision of the board of review and that, in any event, he is entitled to express his opinion of judicial decisions just as any other attorney. While we believe that certification of a decision may be made [228]*228for a variety of reasons, we are willing to assume ■ herein that it indicates disagreement with the conclusion of the board of review. The process results, however, in our decision on the merits of the question presented. It is the mandate of this Court in such cases which forms the basis of subsequent action, and we dare say that it is unlikely military justice personnel will flaunt the directions contained therein simply because it resulted from certification.
With regard to the second proposition, we at once admit the right of The Judge Advocate General to disagree privately with any judicial decision. His disagreement must not, however, be so expressed that it affects the relief granted in a particular case. Thus, his comments on the propriety of ameliorative action by a board of review have no place in a letter transmitting the record of trial to a convening authority for further action. The enactment of the Uniform Code of Military Justice eliminated the requirement that The Judge Advocate General participate in action by the board of review. With respect to their decisions, his function is now purely administrative, and he must be content to accept their conclusion or to exercise his authority under Code, supra, Article 67, 10 USC § 867, to certify the decision to this Court. Absent that certification, his letter of transmittal should include nothing which undercuts the effectiveness of the relief ordered by the board.
There being a fair risk that the accused’s right to an impartial post-trial review was affected by the comments included in General Harmon’s letter, we would normally require new post-trial proceedings. As there must be, for other reasons, a complete rehearing, the accused will, if again convicted, receive this relief as a matter of course.
Ill
While the point was not granted or briefed, we note from the record and oral argument that the accused’s rehearing on the sentence was conducted before a special court-martial although he was originally tried by general court-martial. These courts-martial do not, of course, have coordinate jurisdiction and, in effect, the result is that the trial of accused’s case was split between substantially different tribunals. In our opinion, the hearing of a cause cannot be so divided.
In Ex parte Trombley, 78 Cal App 2d 528, 178 P2d 510, affirmed 81 Cal 2d 801, 193 P2d 734 (1948), the defendant was originally brought to trial in one township. The presiding judge disqualified himself and called upon the judge of another township to hear the case. Defendant was convicted and sentenced by the second judge. Following appeal, the conviction was affirmed, and the second judge again sentenced the defendant. The latter sought habeas corpus on the ground that the original judge’s court had been increased in rank between the two pronouncements of sentence and that a justice of a court of a lesser rank had no authority to adjudge punishment in a court of higher dignity. The California appellate courts indicated that defendant’s claim “may be conceded.” In Henry L. Lang Co. v McGarry, 106 NJL 457, 150 Atl 689 (1930), it was held that a judge of the Court of Common Pleas had no power, in the absence of statute, to consider and decide issues in a case pending in the Supreme Court. See also Patchen v Patchen, 364 Ill 178, 4 NE2d 94 (1936).
These considerations cause us to conclude that it is equally improper to conduct a rehearing on sentence before a special court-martial when the initial trial on the merits occurred before a general court-martial. Moreover, it is obvious that the accused is deprived of substantial rights by such a division in the trial of his ease. While he may possibly benefit in some cases from the limited sentencing powers of the lesser tribunal, he may be denied the services of qualified counsel and is always required to do without the advantages inherent in the services of a trained law officer. Be that as it may, there is no provision in the Code sanctioning such a procedure, and we are convinced that the rehearing on the sentence before the special court-martial was void.
[229]*229IV
Finally, the Government contends that any objection to the utilization of an accuser on the deposition was waived by circumstances indicating that accused made an informed election not to object to its admission in evidence. While something may be said for that position, see Lau Fook Kau v United States, 34 F2d 86 (CA9th Cir) (1929), the matter is at best debatable. As, in any event, the sentence must be set aside, we believe that the interests of justice will be better served in this case by rejection of the doctrine of waiver and direction of a complete rehearing.
The decision of the board of review is reversed and the record of trial returned to The Judge Advocate General of the Air Force. A rehearing may be ordered or the charges dismissed.
Chief Judge Quinn concurs.