DECISION
MURDOCK, Judge:
This case reexamines the issue of proper sentencing testimony concerning rehabilitative potential.
Unlike its predecessor, the 1984 Manual for Courts-Martial included a provision authorizing the trial counsel to present “evidence of rehabilitative potential”. R.C.M. 1001(b)(5). It states:
(5) Evidence of rehabilitative potential. The trial counsel may present, by testimony or oral deposition in accordance with R.C.M. 702(g)(1), evidence, in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation. On cross-examination, inquiry is allowable into relevant and specific instances of conduct.
This provision has been the subject of judicial attention since it appeared in the Manual. The most complete discussion of this subject by the Court of Military Appeals is in United, States v. Homer, 22 M.J. 294 (C.M.A.1986). In United States v. Beno, 24 M.J. 771 (A.F.C.M.R. 1987), pet. denied, 26 M.J. 57 (1988), this court took a restrictive view of what could be presented as evidence of rehabilitative potential. We criticized a broad application of R.C.M. 1001(b)(5) and stated that “(rehabilitation potential testimony should consist of something other than a commander's shorthand recommendation that a punitive discharge be adjudged”. 24 M.J. at 772.
Because this case presents important issues, we elected to consider it en banc. After full consideration of the case, we find we are evenly divided as to the result. This means the judgement of the trial court is affirmed by operation of law. United States v. Peurifoy, 47 C.M.R. 242, 253 (A.F.C.M.R.1973); see 5 Am.Jur.2d Appeal and Error § 902 (1962). Despite this mandated result, we feel it is important to give expression to our views to facilitate further review.
The appellant had nearly 12 years of military service, the last six being in the Air Force. As a result of a urine test which showed positive for marijuana, the appellant was charged with a single specification of wrongful use of marijuana. He pleaded guilty and was sentenced to a bad conduct discharge and reduction to airman. The error concerned here occurred during the sentencing portion of the trial.
[580]*580Trial counsel called the appellant’s commander during sentencing to testify about the appellant’s rehabilitative potential:
MJ: Trial counsel, are you going to try to elicit an opinion with respect to the accused’s rehabilitation potential?
TC: Yes, your honor.
MJ: Is there an objection from the defense to foundation based—
IDC: — No objection for that.
MJ: Since there is no objection, why don’t you just press on quickly here to the guts of the testimony?
TC: Thank you, sir.
Q: Major Rauhecker, are you aware that Staff Sergeant Ohrt has been found guilty of the charge of illegal use of marijuana?
A: Yes, I am.
Q: And, sir, based on everything that you know about Staff Sergeant Ohrt, do you have an opinion about his potential for continued service in the United States Air Force?
IDC: Your Honor, I object. I think counsel — counsel’s going to ask the rehabilitation potential, I have no objection.
MJ: Well, isn’t that what the question was?
IDC: He said for continued service.
MJ: The objection is overruled. Go ahead.
Q: Sir, based on everything that you know, do you have an opinion as to Staff Sergeant Ohrt’s potential for continued service in the United States Air Force?
A: Yes, I do.
Q: And what is that opinion, sir? •
A: I believe he does not have potential.
This case was initially considered by a panel of this court. As part of that consideration, the panel specified two issues relating to the commander’s testimony quoted above. The specified issues asked whether receipt of the testimony was error, and if so whether the error was prejudicial.
In his response to the specified issues the appellant asserts two bases for finding prejudicial error. First, that the testimony invaded the province of the court members to the extent that it seemed to advocate a punitive discharge. Second, that the testimony violated United States v. Horner, 22 M.J. 294 (C.M.A. 1986) in that the commander’s position amounted to an opinion based solely on the nature of the offense. This assertion is drawn from the commander’s statement that his policy, which he announces clearly to all arriving squadron members, is that “if you’re allegedly involved with the use of drugs and found to be guilty that I would have no more use for your services in my command.”
We note that the appellant’s position is somewhat undermined by the commander’s responses during recross examination. When asked whether his opinion of rehabilitative potential was based “solely upon the fact that — of Sergeant Orht’s drug use”, the commander responded, “and previous alcohol abuse.” In fact, when the defense counsel moved to have the commander’s testimony stricken because “it’s clearly obvious it’s based strictly upon this offense”, the military judge denied the motion stating, “Well, of course, your initial cross examination did a good job of demonstrating otherwise.” In sum, we are satisfied that the commander’s recommendation against rehabilitation did not violate Horner.
We now turn to the assertion that the response was prejudicial error because it “seemed to advocate a punitive discharge” and therefore invaded the province of the court-martial members. This is the area where cases such as Beno, supra, have attempted to explore the dimensions of R.C.M. 1001(b)(5). We are concerned that the approach which has been suggested in some cases is too restrictive.
Counsel for both parties have agreed it was error to admit the commander’s testimony as to the “potential for continued service”. We do not reach the same conclusion. Our analysis begins with a recognition that sentencing considerations in courts-martial are inherently different from considerations in any civilian court, federal or state. In fact, although civilian courts and courts-martial are analogous in many ways, courts-martial do not serve the [581]*581identical functions as civilian courts. One reason for this is the difference in Constitutional basis between civilian courts and courts-martial. Courts-martial derive their authority from Congress’ power “to make rules for the government and regulation of the land and naval forces” found in Article I of the Constitution. As such, it is not inappropriate that the military courts created under this authority might have a different perspective from courts created under authority of Article III. In exercise of its authority, Congress has, from time to time, passed penal codes applicable to the armed forces.
The present code, the Uniform Code of Military Justice, authorizes the President to prescribe rules governing pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial.
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DECISION
MURDOCK, Judge:
This case reexamines the issue of proper sentencing testimony concerning rehabilitative potential.
Unlike its predecessor, the 1984 Manual for Courts-Martial included a provision authorizing the trial counsel to present “evidence of rehabilitative potential”. R.C.M. 1001(b)(5). It states:
(5) Evidence of rehabilitative potential. The trial counsel may present, by testimony or oral deposition in accordance with R.C.M. 702(g)(1), evidence, in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation. On cross-examination, inquiry is allowable into relevant and specific instances of conduct.
This provision has been the subject of judicial attention since it appeared in the Manual. The most complete discussion of this subject by the Court of Military Appeals is in United, States v. Homer, 22 M.J. 294 (C.M.A.1986). In United States v. Beno, 24 M.J. 771 (A.F.C.M.R. 1987), pet. denied, 26 M.J. 57 (1988), this court took a restrictive view of what could be presented as evidence of rehabilitative potential. We criticized a broad application of R.C.M. 1001(b)(5) and stated that “(rehabilitation potential testimony should consist of something other than a commander's shorthand recommendation that a punitive discharge be adjudged”. 24 M.J. at 772.
Because this case presents important issues, we elected to consider it en banc. After full consideration of the case, we find we are evenly divided as to the result. This means the judgement of the trial court is affirmed by operation of law. United States v. Peurifoy, 47 C.M.R. 242, 253 (A.F.C.M.R.1973); see 5 Am.Jur.2d Appeal and Error § 902 (1962). Despite this mandated result, we feel it is important to give expression to our views to facilitate further review.
The appellant had nearly 12 years of military service, the last six being in the Air Force. As a result of a urine test which showed positive for marijuana, the appellant was charged with a single specification of wrongful use of marijuana. He pleaded guilty and was sentenced to a bad conduct discharge and reduction to airman. The error concerned here occurred during the sentencing portion of the trial.
[580]*580Trial counsel called the appellant’s commander during sentencing to testify about the appellant’s rehabilitative potential:
MJ: Trial counsel, are you going to try to elicit an opinion with respect to the accused’s rehabilitation potential?
TC: Yes, your honor.
MJ: Is there an objection from the defense to foundation based—
IDC: — No objection for that.
MJ: Since there is no objection, why don’t you just press on quickly here to the guts of the testimony?
TC: Thank you, sir.
Q: Major Rauhecker, are you aware that Staff Sergeant Ohrt has been found guilty of the charge of illegal use of marijuana?
A: Yes, I am.
Q: And, sir, based on everything that you know about Staff Sergeant Ohrt, do you have an opinion about his potential for continued service in the United States Air Force?
IDC: Your Honor, I object. I think counsel — counsel’s going to ask the rehabilitation potential, I have no objection.
MJ: Well, isn’t that what the question was?
IDC: He said for continued service.
MJ: The objection is overruled. Go ahead.
Q: Sir, based on everything that you know, do you have an opinion as to Staff Sergeant Ohrt’s potential for continued service in the United States Air Force?
A: Yes, I do.
Q: And what is that opinion, sir? •
A: I believe he does not have potential.
This case was initially considered by a panel of this court. As part of that consideration, the panel specified two issues relating to the commander’s testimony quoted above. The specified issues asked whether receipt of the testimony was error, and if so whether the error was prejudicial.
In his response to the specified issues the appellant asserts two bases for finding prejudicial error. First, that the testimony invaded the province of the court members to the extent that it seemed to advocate a punitive discharge. Second, that the testimony violated United States v. Horner, 22 M.J. 294 (C.M.A. 1986) in that the commander’s position amounted to an opinion based solely on the nature of the offense. This assertion is drawn from the commander’s statement that his policy, which he announces clearly to all arriving squadron members, is that “if you’re allegedly involved with the use of drugs and found to be guilty that I would have no more use for your services in my command.”
We note that the appellant’s position is somewhat undermined by the commander’s responses during recross examination. When asked whether his opinion of rehabilitative potential was based “solely upon the fact that — of Sergeant Orht’s drug use”, the commander responded, “and previous alcohol abuse.” In fact, when the defense counsel moved to have the commander’s testimony stricken because “it’s clearly obvious it’s based strictly upon this offense”, the military judge denied the motion stating, “Well, of course, your initial cross examination did a good job of demonstrating otherwise.” In sum, we are satisfied that the commander’s recommendation against rehabilitation did not violate Horner.
We now turn to the assertion that the response was prejudicial error because it “seemed to advocate a punitive discharge” and therefore invaded the province of the court-martial members. This is the area where cases such as Beno, supra, have attempted to explore the dimensions of R.C.M. 1001(b)(5). We are concerned that the approach which has been suggested in some cases is too restrictive.
Counsel for both parties have agreed it was error to admit the commander’s testimony as to the “potential for continued service”. We do not reach the same conclusion. Our analysis begins with a recognition that sentencing considerations in courts-martial are inherently different from considerations in any civilian court, federal or state. In fact, although civilian courts and courts-martial are analogous in many ways, courts-martial do not serve the [581]*581identical functions as civilian courts. One reason for this is the difference in Constitutional basis between civilian courts and courts-martial. Courts-martial derive their authority from Congress’ power “to make rules for the government and regulation of the land and naval forces” found in Article I of the Constitution. As such, it is not inappropriate that the military courts created under this authority might have a different perspective from courts created under authority of Article III. In exercise of its authority, Congress has, from time to time, passed penal codes applicable to the armed forces.
The present code, the Uniform Code of Military Justice, authorizes the President to prescribe rules governing pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial. Article 36, U.C.M.J., 10 U.S.C. § 836. Under this authority, the President prescribed the Rules for Court-Martial, including R.C.M. 1001(b)(5), the rule being questioned by the appellant here.
After prohibiting certain punishments, Congress authorized the President to prescribe maximum limits for punishment for offenses under the Code. Articles 55 and 56, U.C.M.J., 10 U.S.C. §§ 855, 856. Some of the punishments the President has prescribed are similar to punishments for offenses tried in civilian courts. For example, confinement, fine, and hard labor without confinement are all similar to civilian punishments. On the other hand several of the punishments which have been prescribed are not only not found in civilian court systems, they would not even be possible in such a court system because they are employment-related punishments. Examples of these punishments are dismissal, dishonorable discharge, bad conduct discharge, forfeitures, and reduction in grade.
Courts-martial are nearly unique in dealing with people who are both subject to the judicial authority of the court and employed by the very same authority. They probably are unique in having criminal offense punishment authority which includes both traditional court punishments and employment-related punishments. This uniqueness leads us to conclude that the provisions governing admissibility of sentencing information should be viewed somewhat differently from analogous information being submitted in a civilian criminal trial.
R.C.M. 1001(b)(5) governs admissibility of evidence of rehabilitative potential at sentencing. The Court of Military Appeals wrestled with the definition of the word “rehabilitate” in Homer. The Court stated that the battery commander in Homer seemed to limit his statements on potential for rehabilitation to “the appropriateness of the accused’s restoration to duty.” Resorting, by necessity, to a “civilian” dictionary, the Court concluded that
[Rehabilitation can denote both a return to a particular status and a return to society generally. Our view of “potential for rehabilitation” is consistent with Webster’s more expansive definition, because ,the sentencing function encompasses more than the question of whether an accused should be restored to duty.
22 M.J. at 296.
Our position is not inconsistent with the Court of Military Appeals’ quoted “expansive” view of rehabilitation. By stating that sentencing “encompasses more than the question of whether an accused should be restored to duty,” the Court has recognized that the question of return to duty is at least part of the sentencing equation. It is our concern with cases which suggest that rehabilitation testimony must not go to the restoration question at all that has prompted our lengthy opinion in the present case.
Most of the questions about R.C.M. 1001(b)(5) have concerned the concept of rehabilitation. Courts have asked “rehabilitation for what?”, or “rehabilitation when?” The restrictive view seems to be that the expression “potential for rehabilitation” means the possibility that the person can be rehabilitated for any purpose. This usually takes the spoken or unspoken form of “can the accused be rehabilitated away from this criminal act in such a way that he or she can function as a law abiding citizen?”
[582]*582R.C.M. 1001(b)(5) suggests more than that to us. The rule authorizes evidence concerning “the accused’s previous performance as a servicemember and potential for rehabilitation.” The use of prior job performance and the juxtapositioning with potential for rehabilitation indicates a desire to obtain evidence on the accused’s potential for on-the-job rehabilitation. That is, can he be rehabilitated and returned to his military job? Civilian sentencing authorities may think about the effect their sentence will have on the accused’s employment, but they are usually not authorized to direct that an accused lose a job as part of the court’s sentence. On the other hand, the employment-related punishments prescribed by the President indicate it would be inappropriate for court-martial sentencing authorities to ignore the question of retention.
R.C.M. 1001(a) states that the prosecution and defense may present matters during the presentencing portion of the court-martial which would “aid the court-martial in determining an appropriate sentence.” We see nothing wrong with a witness stating his opinion, based on the accused’s prior performance as a servicemember, that rehabilitation seems impossible and the accused should be separated. Conversely, testimony that the accused can be successfully rehabilitated and returned to duty should also be helpful to the sentencing authority.
Testimony about retention merely recognizes that discharges are authorized punishments for certain offenses under the code and that information about this sentence component could reasonably assist the sentencing authority in determining an appropriate sentence. However, it would be an inappropriate invasion of the sentencing authority’s responsibilities for a sentencing witness to suggest a specific forfeiture, length of confinement, or specific type of discharge they feel would best suit the accused.
We can see little purpose for the drafters having included a section on rehabilitation potential in the sentencing provisions unless they intended the information to be used, at least in part, to make a decision on retention in the service. Testimony about the accused’s general amenability to rehabilitation seems far less relevant to a court-martial’s sentencing decision than testimony about whether the accused should receive a certain component of the authorized punishment for the offense being considered.
We recognize this position represents a change from some past cases which have applied a more restrictive interpretation to R.C.M. 1001(b)(5). However, we feel it is more consistent with the language of this new sentencing provision, and with the unique sentencing provisions applicable to courts-martial.
The Army Court of Military Review has also discussed this issue recently. United States v. Susee, 25 M.J. 538 (A.C.M.R. 1987). They take a non-restrictive view, similar to the one we are proposing here. We concur with their careful analysis. It is completely consistent with our approach in the present case.
In Susee, the accused’s first sergeant testified that based on “his performance, his attitude, and [the] fact that there are two AWOL’s in his history” his opinion was that “he [didn’t] think the United States Army should spend any more time trying to rehabilitate him.” 25 M.J. at 540. The appellant asserted that this testimony was overbroad and referred to specific instances of misconduct in violation of R.C.M. 1001(b)(5). In deciding that the testimony was appropriate, the Court quoted Mil.R. Evid. 701 which authorizes opinion testimony when it is “rationally based on a perception of the witness” and will be “helpful to a clear understanding of the witness or the determination of a fact in issue.”
The Army Court then proceeded to what we feel is the crux of the argument in their case, and ours:
A fortiori, parties proffering evidence in the nature of an opinion must be afforded a full and fair opportunity to lay the requisite foundation as long as inquiry into specific instances of conduct is not [583]*583permitted on direct examination. See R.C.M. 1001(b)(5).
In our view, the foundation which the trial counsel laid met the requirements of Mil.R.Evid. 701 and thus was proper. To limit appropriate foundational matters in support of opinion testimony would be to bar relevant and admissible evidence from the trier of fact at sentencing — a result fundamentally in conflict with the sound basis of the expanded presentencing practice now permitted in the military.
25 M.J. at 540-541.
We have reviewed the entire record of trial, the assignment of errors, and the government’s reply thereto and have concluded that the findings and sentence are correct in law and fact and that no error prejudicial to the substantial rights of the appellant was committed. As mentioned before, because we are evenly divided, the judgment of the trial court including the findings of guilty and the sentence are
AFFIRMED.
Chief Judge HODGSON and Judges HOLTE and MICHALSKI concur.