United States v. Treakle

OPINION OF THE COURT ON FURTHER REVIEW WOLD, Senior Judge: I. History This case is before us on remand from, the United States Court of Military Appeals for consideration of allegations of unlawful command influence. On 5 October 1982, appellant, a member of the 3d Armored Division, appeared before a general court-martial convened by Major General Thurman E. Anderson to face charges which General Anderson had referred to trial. Appellant pled guilty to wrongful appropriation of nonappropriated funds and to making and submitting false official records. He was sentenced by the commissioned and enlisted members of the court-martial to a bad-conduct discharge, confinement at hard labor for twelve months, forfeiture of all pay and allowances, and reduction to Private E-l. General Anderson approved the findings and the sentence on 14 December [649] 1982. The case was reviewed by a panel of this Court which affirmed the findings of guilty and a portion of the approved sentence. United States v. Treakle, C.M. 443599 (A.C.M.R. 19 Aug. 1983) (unpub.). Appellant then petitioned for review by the United States Court of Military Appeals, alleging for the first time that he had been prejudiced by unlawful command influence. On motion of the Government, the United States Court of Military Appeals remanded the case to us. At the suggestion of the panel of this Court to which the case was returned, we accepted the case for decision en banc.1 Appellate counsel have provided us with exhaustive briefs, voluminous evidence, and oral arguments. We affirm the findings of guilty based on appellant’s provident pleas of guilty. We set aside the sentence and authorize a rehearing based on a finding of unlawful command influence. II. The Facts General Anderson assumed command of the 3d Armored Division on 19 February 1982. On 13 April 1982 he spoke at a meeting with his subordinate commanders and senior noncommissioned officers at which he addressed, among other topics, the subject of testimony on behalf of soldiers at court-martial. This subject was mentioned in at least ten such meetings through December 1982. The 13 April 1982 meeting included subordinate convening authorities from nondivisional units not under General Anderson’s command but within his general court-martial jurisdiction.2 Prior to the 13 April 1982 meeting, the Division Staff Judge Advocate, Lieutenant Colonel John R. Bozeman, prepared a summary of legal topics which General Anderson wanted to discuss. In pertinent part, the summary was as follows: Command influence. a. Do what you think is right; have the courage to stand behind your decisions (whether to prefer charges; what level of disposition to recommend). b. Inquiries about incidents on the blotter do not indicate the CG is dictating a course of action. Get this point to company-level commanders. Witnesses on extenuation and mitigation. a. Common scenario: serious offense at BCD level; company commander testifies that soldier (can be rehabilitated) (should not be discharged) (should not be confined) (should be returned to the unit ‘this afternoon’). b. Apprise company level commanders of the general inconsistency of recommending a GCM or BCD and discharge of the accused from the service, and then testifying to the effect that the accused should be retained. c. CAUTION: These remarks don’t mean don’t testify for one of your soldiers or tell a subordinate not to testify. It is occasionally appropriate to seek a result that an otherwise good soldier will be placed under a suspended punitive discharge. If retention in the service is appropriate, maybe you’ve recommended the wrong level of disposition. Colonel Bozeman was present at the 13 April 1982 meeting and two or three other meetings at which General Anderson spoke on this subject, but was absent from the majority of such meetings. He apparently foresaw no difficulties arising from the [650] general’s remarks, for he neither took nor recommended remedial action until early in 1983, after publication of the Division Command Sergeant Major’s letter discussed below. During an interview with several defense counsel and in sworn testimony at the trial of United States v. Giarratano,3 General Anderson said that he had been concerned by cases in which subordinate commanders had recommended trial by general or bad-conduct discharge special courts-martial, then testified during sentencing proceedings that the accused was a “good soldier” who should not be discharged. Although the general could not recall his comments precisely because he did not use a prepared text, he said his message to his subordinates centered on “consistency” and contained two basic points: that a commander should recommend a lower level court-martial if he does not believe the accused should be discharged; and that in sentencing proceedings a commander should not testify that the accused is a “good soldier” or recommend retention if he believes the accused should be discharged. General Anderson recalled stressing this theme of consistency between recommendations for disposition and testimony and “hoped” that he had also stressed the obligation to testify truthfully. Finally, the general explained that he conveyed the same message to noncommissioned officers on the premise that they typically participate in the commander’s decision on disposition of charges and presumably share his opinion of the soldier in question. Those who heard General Anderson speak report widely different perceptions of his message. Nine battalion commanders agreed that General Anderson stressed the inconsistency of recommending trial before a discharge-level court-martial, then testifying that the accused should be retained in the Army. One battalion commander’s summary, taken from his contemporaneous notes, was that the general “took a dim view of the chain of command coming into a court-martial and offering testimony on behalf of the accused when the chain of command themselves had been the ones that had referred the whole case to the court.” Some understood General Anderson to be encouraging recommendations for lower-level courts-martial when the commander felt the accused should be retained. Others understood him to be discouraging favorable character testimony once a recommendation had been made for trial by a court-martial empowered to adjudge a punitive discharge. Evidence from company commanders showed a similar diversity of perception. All agreed on hearing the consistency theme, which this group generally understood as discouraging lower-level referral recommendations. One company commander’s summary was that General Anderson “was tired of officers and noncommissioned officers preferring charges against soldiers, bringing them to court and then giving testimony as to their good character.” Some said they understood the general to refer only to testimony after findings. Others did not mention hearing such a limitation. Evidence from senior noncommissioned officers revealed the widest diversity of perception. Some understood General Anderson to be discouraging favorable character testimony by noncommissioned officers before discharge-level courts-martial — the “consistency” theme. For example, “Don’t [651] recommend guys for court-martial, send them up there, and turn right around and be a character reference for them, saying they’re good guys.” Some understood the general’s policy to be more direct — that noncommissioned officers should testify in support of their commanders’ recommendations. For example, “[If] the commander... preferred charges against a soldier. .. then NCO’s, particularly NCO’s in that chain of command, should support him.” A few senior noncommissioned officers specifically stated that General Anderson had discouraged favorable character evidence both before and after findings. Many who attended these meetings also understood General Anderson to be prescribing a mandatory definition for the phrase “good soldier”, a definition which did not include those guilty of serious offenses. For example, “[H]e had difficulty understanding why senior NCO’s, people in key positions, could go in and testify on soldiers being good soldiers... when they had just been convicted of serious crimes____” Many of the people who heard General Anderson’s comments recalled that he said these situations made him angry and that he expressed anger by his demeanor as well. Nearly everyone who heard him took his message seriously. Many of those who understood the general to be discouraging favorable character testimony believed that such a policy was morally and legally wrong. Some were deeply troubled by what they believed the general had said. Some felt an implied threat and feared reprisal for those who did not comply. Many commanders and noncommissioned officers relayed their various understandings of General Anderson’s policies through command and noncommissioned officer channels and the subject was a topic of discussion within the 3d Armored Division. However, each of the witnesses who specifically stated that he understood the general’s policy to include pre-findings testimony also said that he had not repeated that version of the general’s comments. On 25 January 1983, after the trial of appellant’s case, the situation was aggravated by division-wide distribution of a letter from the Division Command Sergeant Major. This letter contained the statement that, “Noncommissioned Officers DON’T: ... Stand before a court-martial jury or an administrative elimination board and state that even though the accused raped a woman or sold drugs, he is still a good soldier on duty.” Within the division’s Second Brigade, the situation was also aggravated by the distribution, on 7 December 1982, of the following guidance from the Brigade Command Sergeant Major: Once a soldier has been “convicted”, he then is a convicted criminal. There is no way he can be called a “good soldier” even though up until the day he’s court martialed he is a super star. The NCO Corps does not support “convicted criminals.” We are ruthless and unrelenting in our pursuit of law and order and fully accept our role in upholding the moral ethics and principles upon which our nation is founded. If you personally cannot subscribe to this philosophy my friend, you need to leave the Army and find another occupation in life. On 28 February 1983, the letter from the Division Command Sergeant Major was, for the first time, brought to the attention of Colonel Bozeman, who immediately realized its potential for unlawful command influence. From an interview with the command sergeant major on 1 March 1983, the staff judge advocate learned that not only had the letter been published without legal review, but also that General Anderson had neither seen it nor approved its release. When the staff judge advocate advised the general of the problem that same day by having him read the letter, the general’s unprompted reaction was two-fold: first, that the letter was improper because it advised its readers not to testify favorably for convicted persons; second, that immediate corrective action was needed. In succeeding weeks, pursuant to General Anderson’s direction, the following ac [652] tions were taken. Attempts were made to stop further distribution of the letter. The staff judge advocate personally called subordinate commanders to advise them to disregard the letter and to expect a written retraction. At meetings with subordinate commanders and senior noncommissioned officers on three occasions (20 March 1983, 30 March 1983 and 13 June 1983), the general emphasized that there was no policy against testifying favorably for accused persons at courts-martial and that any such impression created by previous statements or letters was erroneous. He also emphasized that there was a moral and legal obligation to testify favorably. The Division Command Sergeant Major met with senior noncommissioned officers on 10 March 1983 and advised them to disregard that part of his letter involving testifying at courts-martial. At all of these meetings, the staff judge advocate personally reinforced these comments. On 14 March 1983, General Anderson allowed himself to be interviewed under oath by all defense counsel serving the 3d Armored Division in order to explain the nature of his remarks. On 4 March 1983, General Anderson issued a command letter in which he stated the following: 1. Let’s all understand several rules related to testifying on behalf of an accused soldier. 2. At courts-martial or administrative elimination proceedings, an accused soldier has an absolute right to have available witnesses, if any, testify about his or her good conduct, reputation or record for efficiency, or any trait desirable in a good soldier. Stated another way, if a witness has information favorable to the accused soldier and useful to the court-martial or elimination board in determining an appropriate sentence or recommendation, that witness is duty-bound to provide testimony to that effect. Indeed, to go a step further, I believe that the witness ought to take the initiative to let the accused soldier or his defense counsel know what information he has. On 8 March 1983, the Division Command Sergeant Major also published a letter which rescinded his letter of 25 January 1983 and substituted corrective guidance with respect to testifying at courts-martial. Paragraph 2 of the general’s letter of 4 March was quoted within the command sergeant major’s letter. General Anderson and Colonel Bozeman both testified that General Anderson very carefully considered extenuation and mitigation evidence, including favorable character evidence, before referral and during post-trial review of court-martial cases. Colonel Bozeman recounted a number of instances in which the general had, based on evidence in extenuation or mitigation, directed significantly more lenient disposition of cases than that recommended by his subordinates, approved pretrial agreements more generous than those proposed by the accused, or reduced adjudged sentences below the level required by pretrial agreements. We have considered all the evidence in this case, including that cited in the dissent. We are convinced that although General Anderson acted in good faith and intended his remarks to promote appropriate recommendations, numerous commanders and senior noncommissioned officers perceived his remarks as discouraging favorable character testimony, and some understood his comments to apply to prefindings as well as presentencing testimony. We are also convinced that under the circumstances it was reasonable for members of the general’s audience to reach these conclusions. The consequences of these perceptions are therefore the responsibility of the general and his staff and, through them, the Government. While appellant does not contend that he was deprived of any evidence other than favorable character testimony, we note that some members of the 3d Armored Division have made statements which suggest that they understood General Anderson’s comments to mean that they should give no testimony at all for an accused soldier. The number of these individuals is [653] so small, the interpretation so inconsistent with the thrust and context of the general’s remarks, and the weight of contrary interpretations so overwhelming that we do not regard such unwarranted conclusions as a material factor for the disposition of this case. We find that it was unreasonable to conclude from the general’s comments that he was addressing anything other than character evidence and we do not construe Article 37(a), Uniform Code of Military Justice,4 to apply to unreasonable interpretations of a commander’s comments.5 III. Command and Staff Responsibility The duties of a division commander as a court-martial convening authority and as the primary leader responsible for discipline within the division are among the most challenging a commander can perform. On the one hand, effective leadership requires a commander to supervise the activities of his subordinates diligently and ensure that state of good order and discipline which is vital to combat effectiveness. On the other hand, he must exercise restraint when overseeing military justice matters to avoid unlawful interference with the discretionary functions his subordinates must perform. The process of maintaining discipline yet ensuring fairness in military justice requires what the United States Court of Military Appeals has called “a delicate balance”6 in an area filled with perils for the unwary. Many experienced line officers have expressed similar conclusions. Excerpts from two particularly useful and authoritative examples are reproduced in the appendix to this opinion. General Anderson attempted to correct what he perceived to be a command problem. Correction of procedural deficiencies in the military justice system is within the scope of a convening authority’s supervisory responsibility.7 Yet in this area, the band of permissible activity by the commander is narrow, and the risks of overstepping its boundaries are great. Interference with the discretionary functions of subordinates is particularly hazardous. While a commander is not absolutely prohibited from publishing general policies and guidance which may relate to the discretionary military justice functions of his subordinates,8 several decades of practical experience under the Uniform Code of Military Justice have demonstrated that the risks often outweigh the benefits. The balance between the command problem to be resolved and the risks of transgressing the limits set by the Uniform Code of Military Justice is to be drawn by the commander with the professional assistance of his staff judge advocate. Although the commander is ultimately responsible, both he and his staff judge advocate have a duty to ensure that directives in the area of military justice are accurately stated, clearly understood and properly executed. In this case General Anderson and his staff judge advocate neglected two important principles: (1) Announce policies and directives clearly. General Anderson sought to correct a perceived problem — inconsistency between recommendations that a case be tried by a court capable of adjudging a discharge and testimony that the accused should be retained in the service.9 Unfor [654] tunately, he sought to disseminate his policy of “consistency” through partly extemporaneous comments to large audiences rather than publishing his guidance in writing. Earlier the staff judge advocate had provided the general with a point paper which included a cautionary warning to ensure that the general did not convey the impression that one should not testify for accused soldiers. The subtle and somewhat contradictory nature of the points in that paper resulted in a message which was simply too complex for successful transmission to a large audience via verbal comments. The resulting confusion was increased by the tone and demeanor the general projected and by the fact that on some occasions he omitted the cautionary comment recommended by his staff judge advocate. (2) Follow up to see that directives are correctly understood and properly executed. Neither the general nor his staff judge advocate took steps to determine what the members of the 3d Armored Division were gleaning from his comments in this highly sensitive area or what effect his remarks were having on the military justice process. No one in the audience was asked his understanding of the general’s message. Trial and defense counsel were not alerted to watch for signs that witnesses were being improperly influenced. The staff judge advocate was absent from many of the meetings at which the general spoke and could not monitor the clarity and effect of the general’s delivery. No record was made of what the general actually said. We now turn to the legal consequences. IV. The Findings Appellant contends that the findings of guilty, which were based on appellant’s otherwise provident pleas of guilty,10 should be set aside. The grounds urged by appellant are: (1) disqualification of the convening authority from referring the charges to trial because of an injudicious attitude or because he was an accuser within the terms of Article 1(9), Uniform Code of Military Justice,11 (2) unlawful influence on the exercise of independent judgment by the accuser and commanders forwarding charges; and, (3) improvidence of appellant’s plea of guilty because of deprivation of favorable character evidence. A. Disqualification of Convening Authority We do not agree with appellant’s contention that a convening authority can be deprived of his statutory power to convene courts-martial and refer charges to trial based on lack of judicial temperament. The cases cited by appellant for the proposition 12 offer no direct support and dubious inferential support. Nothing in the Uniform Code of Military Justice suggests that Congress entertained such a concept. To the contrary, the statutory scheme and legislative history of the Uniform Code of Military Justice indicate to us that Congress endowed commanders described in Articles 22, 23 and 24 of the Uniform Code of Military Justice13 with military justice powers intending that the Executive should determine who should exercise those powers. To check the exercise of these powers, Congress endowed the courts created by the Uniform Code of Military Justice with the power to grant relief in individual cases where an abuse of command authority has taken place. We view this system as an integral feature of the balance struck [655] by Congress between command functions and the administration of military justice.14 Even if appellant’s theory of disqualification because of an injudicious attitude were valid, that theory would not apply to the case at bar, as we have found that General Anderson’s actions were marked by confusing communication rather than deliberate attempts to pervert the military justice system. The evidence simply does not reveal an attitude or temperament which would satisfy any rational test which might be devised to implement such a theory of disqualification.15 As to the second ground on which appellant urges General Anderson’s disqualification, i.e., that he was an accuser within the meaning of Article 1(9), Uniform Code of Military Justice, the established test is whether a convening authority has a “personal”16 or “other than official” 17 interest in a case. We have no evidence that General Anderson had ever heard of appellant before the charges in this case were presented to him for referral. There is no evidence that the general was affected in any capacity other than his official capacity by appellant, appellant’s offenses, or offenses of a similar nature. Accordingly, he was not an accuser and on that basis was not disqualified from participating in the referral process. B. Independent Judgment As noted above, General Anderson’s comments about referral recommendations were clearly proper and tended to benefit accused soldiers by encouraging lower-level referrals. The improper portion of the general’s comments addressed the testimony of potential witnesses. No evidence before us indicates that the improper portion of the general’s comments had any effect on any subordinate’s decision to swear to charges or to recommend a particular disposition of any charges. Notably absent is any evidence that any accuser or forwarding authority even considered the improper portion of the general’s comments in connection with his performance of those functions.18 Considering the evidence, which showed a long course of embezzlement of over $7,000.00 in funds held for the benefit of the members of appellant’s unit and the submission of numerous false records, the actions and recommendations of the chain of command were exactly what one would expect. Appellant’s contention — that he was deprived of the exercise of independent judgment by the person who swore to the charges against him and the commanders who recommended disposition of those charges— rests on speculation contradicted by the circumstances of the case, is not fairly raised by the evidence, and must fail.19 [656] C. Providence of Pleas Appellant was the manager of a unit lounge. During an inventory and audit of the lounge, it was discovered and documented that appellant had embezzled nonappropriated funds from the lounge and had made and submitted false official documents to conceal his activities. This prompted appellant to voluntarily approach his battery commander and confess. Appellant was then charged with fifteen separate specifications alleging making and presenting false official records, larceny of $7,413.00 in nonappropriated funds, and delivering an amount less than called for by a receipt, violations of Articles 107, 121 and 132, Uniform Code of Military Justice,20 respectively. Prior to trial appellant offered to waive a pretrial investigation21 and to plead guilty to wrongful appropriation of $4,000.00 and one specification of making and presenting false official records. In return, appellant sought the convening authority’s agreement to direct the trial counsel to present no evidence of larceny and no evidence on the Article 132 charge and to suspend execution of any fine adjudged by the court. This offer was accepted and at trial appellant entered guilty pleas consistent with the pretrial agreement. Appellant’s pleas were accepted after a thorough providence inquiry. In sworn testimony, appellant stated that he had entered his pleas of guilty in order to “accept [his] punishment,” “right the wrong that [he] had done”, “begin that long process of redeeming [himself]”, and “serve as a positive example to the other troops, both NCO’s and below” — in other words, to satisfy his conscience and demonstrate his rehabilitative potential. Appellant requests that we set aside the findings of guilty. Appellant does not contend that General Anderson exerted any pressure on appellant to plead guilty. Indeed, he asserts that he was unaware of the general’s comments and of any effect they may have had on anyone. What appellant does contend is: (1) that General Anderson’s comments deprived him of some favorable character witnesses; (2) that the absence of these witnesses affected his determination whether to defend on the basis of good character and his determination of what plea bargain was acceptable; and, (3) that therefore his pleas of guilty were improvident. Stripped to its essence, appellant’s contention is that his pleas were improvident because the missing character witnesses created a misapprehension on his part about the strength of the defense he could present. We find that appellant’s plea decision was not influenced by a lack of character witnesses. 1. Deprivation of Witnesses Article 37(a), Uniform Code of Military Justice,22 provides: No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or [657] (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel. We hold that the portion of Article 37, 10 U.S.C. § 837 which forbids coercion or unauthorized influence on the action of a court-martial prohibits coercion or unauthorized influence on actual or prospective witnesses with respect to the content of their testimony.23 While we have no direct evidence that anyone who could have given favorable character testimony for appellant was influenced by General Anderson’s comments, those comments were, as noted above, reasonably understood by many persons to discourage such testimony and by some to discourage such testimony on the merits as well as during sentencing proceedings. A finding that unlawful pressure has been brought to bear in violation of Article 37 triggers a rebuttable presumption that the recipient of the unlawful pressure was in fact influenced.24 As we construe this presumption of prejudice, the target and the content of the unlawful pressure define the nature and extent of the presumed influence and the resulting prejudice. The presumption may be rebutted only by clear and positive evidence.25 Consequently, if any prospective character witness for appellant directly or indirectly heard General Anderson’s message and reasonably understood him to be discouraging favorable character testimony, that unlawful pressure would trigger a rebuttable presumption that the witness was in fact influenced not to give favorable character testimony. In this case, appellant’s battery commander, first sergeant, former chief of firing battery, another supervisor and a former subordinate gave favorable character testimony for appellant during the sentencing phase of the trial. This fact is persuasive evidence that appellant was not deprived of favorable character evidence by General Anderson’s comments, but we need not and do not decide this question. We will assume that he was. 2. Effect on Guilty Pleas Notwithstanding the assumption that appellant was deprived of favorable character evidence, it does not automatically follow that appellant’s pleas of guilty were improvident. Whether appellant was prejudiced with respect to his pleas of guilty depends on whether the assumed deprivation of character witnesses caused a misapprehension which was a substantial factor in his decision to plead guilty. [A] substantial misapprehension ... may vitiate the providence of a plea of guilty____ All the circumstances presented by the record must be considered to determine whether [the] misapprehension ... affected the providence of guilty pleas____ Our own examination of the record convinces us that appellant’s misapprehension... was an insubstantial factor in his decision to plead guilty____ [I]n appellant’s negotiation of the pretrial agreement, the [misapprehension] did not affect his willingness to plead guilty.26 The fact that a witness or witnesses declined to give favorable character testimony, and thus created a misapprehension about the state of the evidence, does not by itself indicate that the misapprehension was a substantial factor in the plea decision. The decision to enter a negotiated plea of guilty is highly personal. Any of a wide variety of factors may dictate a given plea decision; any particular circumstance, including the availability of character witnesses, may be immaterial to a given accused. We have no evidence from any source which suggests that the unavailabil [658] ity of additional character witnesses was a substantial factor in appellant’s plea decision. The prospect that appellant might have proceeded differently is thus theoretical and speculative only. Conversely, the fact that appellant would have been limited on the merits to evidence of relevant traits of character27 and by practical and legal considerations of cumulativeness28 indicates that it was not a substantial factor. In addition, all of the evidence in the record of trial points to a plea of guilty which was the product of strong evidence of guilt in the hands of the prosecutor, the commands of a troubled conscience, a desire for the protection of a pretrial agreement and an appreciation of the mitigating value of a plea of guilty. Based on this clear and positive evidence, we find that appellant would have entered his negotiated plea with or without additional character evidence and that his pleas of guilty were provident. The resulting findings must stand. V. The Sentence Among those who heard General Anderson speak was a member of appellant’s court-martial. His perception of the general’s message was: [Y]ou will not go to court and state that [a convicted soldier] is a good soldier; no matter how good the soldier’s performance was prior to the court-martial, you would not state that “you would like to have this soldier remain in the Army,” and that you would be willing to serve with this soldier in combat. The member has denied being influenced by General Anderson’s perceived policies. The sincerity and the subjective truthfulness of his denial are evident. Article 37(a), Uniform Code of Military Justice,29 forbids coercion or unauthorized influence on the deliberations of members of a court-martial.30 The comments attributed to General Anderson by the member in question dealt with potential witnesses, not members of a court-martial. Nevertheless, when considered from the perspective of a court-martial member, the logical inference is that evidence of the accused’s good duty performance and soldierly qualities should be discounted and that retention of a convicted accused is inappropriate. We conclude that the member in question drew that inference and understood it to be General Anderson’s policy for court-martial members. By the time appellant’s case was tried, the general’s message had been widely disseminated within the 3d Armored Division, but no remedial measures had been undertaken. This circumstance creates at least the appearance that the other members of appellant’s court-martial who were assigned to the 3d Armored Division had also heard the general’s message, understood him to be discouraging favorable character testimony, and drew the same inference. As noted above, when such unlawful pressure has or appears to have been brought to bear on a member of a court-martial, the law presumes that the member was in fact influenced. This presumption is rebuttable by clear and positive evidence that no actual influence occurred. Standing alone, a member’s denial that he was influenced is ordinarily insufficient to rebut the presumption.31 In this case the evidence is insufficient to rebut the presumption that the members in question were in fact influenced by General Anderson’s comments. Appellant’s sentence included a bad-conduct discharge, confinement at hard labor [659] for twelve months, forfeiture of all pay and allowances, and reduction to Private E-l. The punitive discharge is consistent, rather than inconsistent, with actual influence on the sentence and tends to confirm rather than rebut the presumption that the members were in fact influenced. We cannot say that the sentence as a whole, viewed in the context of the entire case, clearly rebuts the presumption of actual influence on the sentence. We have no other evidence which is relevant to the presence or absence of actual influence. The nature of the presumed influence is such that prejudice as to the sentence is apparent. The Government has argued that we should order a hearing32 to allow further litigation of this issue. At such a hearing the parties would presumably explore such relevant questions as: (1) whether the other members had heard General Anderson’s message and if so, what they understood the general’s policies to be; (2) whether any member recalled or considered these policies during appellant’s trial; (3) whether any member in fact drew the inference described above; (4) whether General Anderson’s policies Were discussed by the members during deliberations or at any time during appellant’s trial; and, (5) whether any member was actually influenced in deciding appellant’s sentence. In the case at bar, we have answers to enough of the relevant questions to render such a hearing superfluous. The member in question has affirmed that his perception of General Anderson’s policies was discussed by the members during appellant’s trial. Affidavits from other members corroborate this information. The sentence must be set aside. VI. Disposition Our consideration of this case has not been limited to the issues discussed above. We have examined each stage in the processing and disposition of the charges. In addition, we have considered the total effeet of General Anderson’s comments to determine whether appellant’s case is free from prejudice brought about by unlawful command influence and to determine whether appellant’s case presents the appearance of fairness.33 We are satisfied that appellant has suffered no prejudice unredressed by the remedy we direct. We are also satisfied that this remedy eradicates any appearance of unfairness in appellant’s case. The findings of guilty are affirmed. The sentence is set aside. A rehearing on the sentence may be ordered. Chief Judge HANSEN, Senior Judges MOUNTS, McKAY and SUBROWN and Judge WERNER concur. Judge COKER was present for oral argument but did not participate in the decision of this case. Judges WATKINS, BADAMI and BROOKSHIRE did not participate in the decision of this case. APPENDIX TO THE OPINION OF THE MAJORITY Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. Dear : Because it is of the utmost importance that commanders maintain the confidence of the military and the public alike in the Army military justice system, the following suggestions are offered you as a commander who has recently become a general court-martial convening authority, in the hope that they will aid you in the successful accomplishment of your military functions and your over-all command mission. [660] A serious danger in the administration of military justice is illegal command influence. Congress, in enacting the Uniform Code of Military Justice, sought to comply with what it regarded as a public mandate, growing out of World War II, to prevent undue command influence, and that idea pervades the entire legislation. It is an easy matter for a convening authority to exceed the bounds of his legitimate command functions and to fall into the practice of exercising undue command influence. In the event that you should consider it necessary to issue a directive designed to control the disposition of cases at lower echelons, it should be directed to officers of the command generally and should provide for exceptions and individual consideration of every case on the basis of its own circumstances or merits. For example, directives which could be interpreted as requiring that all cases of a certain type, such as larceny or prolonged absence without leave, or all cases involving a certain category of offenders, such as repeated offenders or offenses involving officers, be recommended or referred for trial by general court-martial, must be avoided. This type of directive has been condemned as illegal by the United States Court of Military Appeals because it is calculated to interfere with the exercise of the independent personal discretion of commanders subordinate to you in recommending such disposition of each individual case as they conclude is appropriate, based upon all the circumstances of the particular case. The accused’s right to the exercise of that unbiased discretion is a valuable pretrial right which must be protected. All pretrial directives, orientations, and instructions should be in writing and, if not initiated or conducted by the staff judge advocate, should be approved and monitored by him. * * * * * # The results of court-martial trials may not always be pleasing, particularly when it may appear that an acquittal is unjustified or a sentence inadequate. Results like these, however, are to be expected on occasion. Courts-martial, like other human institutions, are not infallible and they make mistakes. In any event, the Uniform Code prohibits censuring or admonishing court members, counsel, or the law officer with respect to the exercise of their judicial functions. My suggestion is that, like the balls and strikes of an umpire, a court’s findings or sentence which may not be to your liking be taken as ‘one of those things.’ Courts have the legal right and duty to make their findings and sentences unfettered by prior improper instruction or later coercion or censure. Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17-21 (18 Jan 1960) (emphasis added). Excerpts from an article by General William C. Westmoreland discussing the relationship of military justice to good order and discipline in the Army. As a soldier and former commander, and now as Chief of Staff of the Army, I appreciate the need for a workable system of military justice. Military commanders continue to rely on this system to guarantee justice to the individual and preserve law and order within the military. * * Sis * * * An effective system of military justice must provide the commander with the authority and means needed to discharge efficiently his responsibilities for developing and maintaining good order and discipline within his organization. Learning and developing military discipline is little different from learning any discipline, behavioral pattern, skill, or precept. In all, correction of individuals is indispensable____ The military commander should have the widest possible authority to use measures to correct individuals, but some types of corrective action are so severe that they should not be entrusted solely to the discretion of the [661] commander. At some point he must bring into play judicial processes. At this point the sole concern should be to accomplish justice under the law, justice not only to the individual but to the Army and society as well. I do not mean to imply that justice should be meted out by the commander who refers a case to trial or by anyone not duly constituted to fulfill a judicial role. A military trial should not have a dual function as an instrument of discipline and as an instrument of justice. It should be an instrument of justice and in fulfilling this function, it will promote discipline. The protection of individual human rights is more than ever a central issue within our society today. An effective system of military justice, therefore, must provide of necessity practical checks and balances to assure protection of the rights of individuals. It must prevent abuses of punitive powers, and it should promote the confidence of military personnel and the general public in its overall fairness. It should set an example of efficient and enlightened disposition of criminal charges within the framework of American legal principles. Military justice should be efficient, speedy, and fair. Westmoreland, Military Justice — A Commander’s Viewpoint, 10 Am.Crim.L.Rev. 5, 5-8 (1971). Footnotes [1] We are cognizant of the holding in United States v. Chilcote, 20 U.S.C.M.A. 283, 43 C.M.R. 123 (1971), which proscribed en banc reconsideration of the decision of a panel of a Court of Military Review. The case at bar does not fall within the holding of Chiicote since the panel of this Court which originally reviewed this case did not consider the issues we address. See United States v. Roettger, 16 M.J. 536 (A.C.M.R.1983), rev'd on other grounds, 17 M.J. 453 (C.M.A.1984). [2] The general court-martial jurisdiction of the Commander, 3d Armored Division, is defined by geographic limits. He acts as the general court-martial convening authority for all troops within his designated geographic area. Army Reg. 27-10, USAREUR Supplement 1, App. F, Military Justice Related Policy and Procedures, paras. 91 and 10d(l) at 17-18 (1978). [3] S.P.C.M. 20588, tried during the period 12 October — 10 December 1983. On motion of appellate defense counsel the transcript of testimony and the documentary exhibits compiled in a lengthy motions hearing at Giarratano’s trial were admitted as an appellate exhibit in this case. Citing United States v. Karlson, 16 M.J. 469 (C.M.A.1983), and United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), appellant argues that this evidence, and the numerous affidavits which also have been admitted on his motion, can only be used to raise issues or decide the case in his favor. Our disposition moots this issue. In any event, we do not understand Karlson or DuBay to preclude us from considering evidence offered by appellant, or to preclude us from making findings of fact where the evidence is free of substantial dispute. [4] 10 U.S.C. 837(a) (1982). [5] The events outlined above were brought to light primarily through the efforts of members of the United States Army Trial Defense Service, an independent agency with the mission of providing defense services to soldiers. Among those involved, we are particularly impressed with the dedication and professionalism of Captain Stephen R. Kane, then Senior Defense Counsel, Hanau Field Office, United States Army Trial Defense Service. [6] United States v. Littrice, 3 U.S.C.M.A. 487, 491, 13 C.M.R. 43, 47 (1953). [7] See generally paras. 29-35, 94, 128, Manual for Courts-Martial, United States, 1969 (Revised edition). [8] United States v. Littrice, 3 U.S.C.M.A. at 491-93, 13 C.M.R. at 47-49. [9] Paragraphs 30g and 33h, Manual for Courts-Martial, United States, 1969 (Revised edition), state the general requirement that charges [654] should be referred to "the lowest court that has power to adjudge an appropriate and adequate sentence.” Thus General Anderson's concern with appropriate referral recommendations was a legitimate command interest. [10] United States v. Treakle, CM 443599 (A.C.M.R.19 Aug. 1983) (unpub.). [11] 10 U.S.C. 801(9) (1982). [12] United States v. Lynch, 9 U.S.C.M.A. 523, 26 C.M.R. 303 (1958); United States v. Daniels, 27 C.M.R. 515, opinion on reconsideration, 27 C.M.R. 527 (A.B.R.1958). [13] 10 U.S.C. 822, 823, 824 (1982). [14] See Curry v. Secretary of Army, 595 F.2d 873, 879-81 (D.C.Cir.1979); see generally Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the House Comm, on Armed Services, 81st Cong., 1st Sess. 606 (1949). [15] See United States v. Crawley, 6 M.J. 811, 813 (A.F.C.M.R.1978), pet. denied, 7 M.J. 67 (C.M.A. 1979); cf. Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982) (convening authority cannot abdicate his prosecutorial responsibilities); United States v. Hardin, 7 M.J. 399 (C.M.A. 1979) (referral process is essentially prosecutorial in nature). [16] United States v. Crossley, 10 M.J. 376, 378 (C.M.A.1981); Brookins v. Cullins, 23 U.S.C.M.A. 216, 218, 49 C.M.R. 5, 7 (1974); United States v. Gordon, 1 U.S.C.M.A. 255, 259-62, 2 C.M.R. 161, 165-68 (1952). [17] United States v. Conn, 6 M.J. 351, 354 (C.M.A. 1979). [18] Cf. United States v. Wood, 13 U.S.C.M.A. 217, 223-24, 32 C.M.R. 217, 223-24 (1962) (circumstances did not indicate unlawful command influence where court members could not recall policy letter). [19] Compare United States v. Smith, 1 M.J. 1204 (N.C.M.R.1977) (convening authority's statements to subordinates condemning recruit maltreatment could not be reasonably construed as unlawful command influence), pet. denied, 3 M.J. 165 (C.M.A.1977) with United States v. Hawthorne, 7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956) (rehearing ordered when company commander based recommendation for court-martial on policy letter); United States v. Doherty, 5 U.S.C.M.A. 287, 17 C.M.R. 287 (1954) (reconsider sentence when convening authority approved bad-conduct discharge because of Navy policy); United States v. Charleson, 26 C.M.R. 630 (A.B.R.1958) (reassess sentence when company commander’s decision to recommend court-martial [656] had been influenced by battalion executive officer). [20] 10 U.S.C. 907, 921, 932 (1982). [21] Article 32, Uniform Code of Military Justice, 10 U.S.C. 832 (1982). [22] 10 U.S.C. 837(a) (1982). [23] See United States v. Rosser, 6 M.J. 267 (C.M.A.1979). [24] See generally United States v. Johnson, 14 U.S.C.M.A. 548, 34 C.M.R. 328 (1964). [25] United States v. Rosser, 6 M.J. at 272. [26] United States v. Walls, 9 M.J. 88, 90-92 (C.M.A.1980). See also United States v. Hunt, 10 M.J. 222 (C.M.A.1981); United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973). [27] Mil.R.Evid. 404. [28] Mil.R.Evid. 403. [29] 10 U.S.C. 837(a) (1982). [30] See United States v. Olson, 11 U.S.C.M.A. 286, 29 C.M.R. 102 (1960); United States v. Estrada, 7 U.S.C.M.A. 635, 23 C.M.R. 99 (1957); United States v. Littrice, 3 U.S.C.M.A. 487, 13 C.M.R. 43 (1953); United States v. Olivas, 26 C.M.R. 686 (A.B.R.1958). [31] United States v. Cole, 17 U.S.C.M.A. 296, 297-98, 38 C.M.R. 94, 95-96 (1967); United States v. Kitchens, 12 U.S.C.M.A. 589, 693, 31 C.M.R. 175, 179 (1961); United States v. Zagar, 5 U.S.C.M.A. 410, 414, 18 C.M.R. 34, 38 (1955); United States v. Toon, 48 C.M.R. 139, 143 (A.C.M.R.1973). [32] See United States v. Ray, 20 U.S.C.M.A. 331, 43 C.M.R. 171 (1971); United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). [33] Cf. United States v. Rosser, 6 M J. at 272 (total effect of unlawful conduct considered to ascertain extent of prejudice and appearance of fairness).