Opinion of the Court
Quinn, Chief Judge:
A divided board of review affirmed the accused's conviction by general court-martial of two specifications of sodomy, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925. The issue which split the board of review, and which is the basis of the accused's petition to this Court, is whether the Navy policy for disposition of homosexuals embodied in SECNAV Instruction 1620.1 deprived the convening authority of discretion to dismiss the charges or to refer them to other than a general court-martial for trial.
In a prefatory statement the SEC NAV Instruction states that homosexuality may present a medical problem to the individual, but it also poses a military disciplinary problem. The Instruction, which is addressed to "All Ships and Stations," then declares that "Known homosexuals are military liabilities and must be eliminated from the sex*vice." Homosexuals are classed in three broad categoi'ies and a separate procedux-e for disposition of persons falling within each class is prescribed. In Class I are persons who engage in an act of homosexuality with the exercise of some soi't of force or fraud. Class II includes persons who engage in acts not within the scope of Class I, that is, the act is accomplished with the consent of the other party. Class III covers persons who exhibit or admit "tendencies" of homosexuality, or against whom there are "no specific provable acts or offenses." The acts charged to the accused in this case brought him within Class II. The procedure prescribed for disposition of such a case is as follows :
"(2) Disposition. Disposition will be accomplished by administrative separation under conditions other than honorable, ünless the individual resists separation from the service under such conditions, in which case he will be recommended for trial by court-martial. Detailed procedure follows:
"(3) Sample charges and specifications for trial by general court-martial shall be drawn and the accused shall be confronted with them. He shall be offered the following alternatives:
"(a) 1. Officers shall be infoi'med that acceptance will be recommended of a resignation in tenor as follows: T hereby tender my resignation for the good of the service and to escape trial by general court-martial. I understand that my separation from the naval service effected by acceptance of this resignation will be under conditions other than honorable; that I may be deprived of virtually all rights as a veteran under both Federal and State legislation; and that I may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of separation therefrom may have a bearing.'
"2. If an accused enlisted person refuses to sign a statement so worded, he shall be recommended for trial by general court-martial. Recommendations for trial shall be prepared and submitted to the officer exercising general court-mai'tial jurisdiction."
The Instruction is not new to this Court. As recently as last term, we rejected a broadside attack upon it on the ground that the language of its provisions compelled the convening authority to approve the punitive discharge adjudged by the court-martial and to disregard a request for proba tion approved by the accused's immediate commander. United States v Betts, 12 USCMA 214, 30 CMR 214. We pointed out that as a policy declaration on a matter affecting good order and discipline, the terms of the Instruction did not necessarily require the convening authority to abdicate his independent judgment in the performance of his court-martial functions. Cf. United States v Hawthorne, 7 USCMA 293, 22 CMR 83. Consequently, since the record in the case convincingly indicated that the convening authority did not mistakenly regard the Instruction as a command restriction on his statutory authority, we sustained his action approving the findings of guilty and the sentence of the court-martial. On the other hand, in an earlier case, it appeared from the record of the proceedings that the convening authority acted on the erroneous assumption that his statutory responsibilities in regard to courts-martial, as distinguished from administrative action, were circumscribed by the Instruction. We, therefore, set aside his action and directed reconsideration of the case. United States v Doherty, 5 USCMA 287, 17 CMR 287. "The important question," we said in the Betts case, supra, page 218, "is not whether the convening authority gave consideration to the policy but rather did he understand fully that he had a choice to accept or reject it." Similarly, affirmance or reversal here depends not upon whether the convening authority knew of the provisions of the Instruction, but upon whether he believed it was a command mandate to put aside all discretion as to disposition of the charges and to refer them only to a general court-martial for trial. Cf. United States v Hawthorne, supra.
To show that the convening authority regarded the policy as a mandatory command, the accused points to two references to the Instruction in the staff legal officer's pretrial advice. These references are as follows: At the top of the advice is the statement:
"Ref. (a) MCM 1951, par. 35
(b) SECNAVINST 1620.1"
and paragraph 4 in the text of the advice says that "In accordance with the provisions of paragraph 5b of reference (b), subject man has been interviewed and afforded the opportunity to accept an undesirable discharge in order to escape trial by general court-martial, but has refused to do so." The references do no more than call attention to the Instruction. They do not indicate or intimate that the Instruction required the convening authority to abdicate his court-martial responsibilities. On the contrary, the advice contains a positive indication that neither the staff legal officer, nor the convening authority acting on the advice, regarded his duties under the Uniform Code as curtailed by the Instruction. It does not refer to the Instruction alone; it also cites paragraph 35 of the Manual for Courts-Martial. That paragraph sets out the broad powers of the convening authority over the disposition of pending charges and the obligations of the staff legal officer. In the discharge of their respective functions the staff legal officer recommended, and the convening authority dismissed, a specification of one of the charges because of insufficient evidence to support it. These actions reflect an independence of thought and conduct which is inconsistent with a claim of blind obedience to a mistaken interpretation of the commands of the Instruction. We agree with the board of review that "there is no indication that the convening authority was misled by the directive . . . [and] there is nothing which would support a reasonable conclusion or inference that . . . [he] did not act independently of any policy declaration in referring this case to trial by general court-martial." See United States v Betts, supra.
The decision of the board of review is affirmed.
Judge Kilday concurs.
The court-martial sentenced the accused to a bad-conduct discharge, total forfeitures, confinement at hard labor for one year and reduction to fireman recruit. The convening authority approved the findings of guilty but modified the sentence by reducing the period of confinement to six months.