Officer participating in preparation of advice to trial counsel as to manner of trying case as not disqualified from reviewing the record as staff judge advocate, see United States v. Haimson, CRT-M § 4.3. Staff judge advocate's advice to convening authority that he could not consider results of lie detector and truth serum tests in determining whether the findings should be set aside, see United States v. Massey, EVID § 189.5. Presumption of impartiality of staff judge advocate's review reflecting opinions of defense counsel derogatory to the accused, see ACM 9961, McCune, WITN § 43.3. Staff judge advocate as not disqualified by reason of advice to the trial counsel concerning the manner of trying the case, see ACM 8779, Ross, CRT-M § 4.3. § 27. Action of Convening Authority or Officer Exercising § 27.1. Generally. One of the offenses of which the accused was found guilty was a larceny offense. His sentence included a bad conduct discharge. The convening authority in his actions stated that the facts of the case and independent investigation by him indicated that the accused was not a thief at heart, that there was no reason to believe he would repeat his mistake and that the convening authority did not interpret the Navy Department policy relative to separating thieves from the service as extending to the circumstances of the accused's case. However, he stated that in order not to tie the hands of reviewing authorities the punitive discharge was left undisturbed with the recommendation that a reviewing authority remit or suspend it. Held: The action of the convening authority was erroneous since the accused was denied the benefit of the free exercise of the discretion of the convening authority to judge his sentence in the manner provided by law. (Citing MCM, 1951, par 76a; UCMJ, Art 64; MCM, 1951, par 86a; U. S. v. Cavallaro (No. 2774), 3 USCMA 653, 14 CMR 71; U. S. v. Doherty (No. 4884), 5 USCMA 287, 17 CMR 287.) NCM 387, Thompson (1955) 18 CMR 444. Convening authority's review as affected by violation of attorneyclient privilege in preparation of post-trial clemency report, see ACM 8270, Bryant, SENT & PUN § 11.1. Convening authority's approval omitting time and place of offense, see ACM S-9785, Hicks, CONDUCT, ETC § 29.15. Convening authority should take such appellate action as necessary to achieve end he desires if such action is within his authority and he should not rely on superior authority to effectuate his intent, see United States v. Doherty, SENT & PUN § 11.3. § 27.9. Reconsideration or modification of action. In considering a motion for reconsideration, indicating an omission in the record, the board of review had the record returned to the convening authority for a certificate of correction. The convening authority forwarded such a certificate through the officer exercising general court-martial jurisdiction. The convening authority affirmatively recognized "his original action on the case exhausted his review powers" and the record contained no corrective action by him. However, the officer exercising general court-martial jurisdiction purported to take corrective action based on the certificate of correction by eliminating the bad conduct discharge from the previously approved sentence of bad conduct discharge, forfeiture of $50 per month for three months, confinement for three months and reduction to the grade of private. The appellate defense counsel then filed a motion with the board of review alleging that without the bad conduct discharge the sentence did not authorize further review by the board of review and he asked that the case be withdrawn from the board of review and that it be referred to the Office of the Judge Advocate General for appropriate action. Held: The position taken by the convening authority that he could take no corrective action because his original action had exhausted his review powers was correct. A certificate of correction does not authorize an additional review of the record by authorities who had already acted upon it. Therefore, the corrected action of the officer exercising general court-martial jurisdiction and the supplementary special court-martial order purporting to promulgate such action were null and void. Accordingly, the motion that the case be withdrawn from the board of review and be referred to The Judge Advocate General is denied and the motion for reconsideration is granted and the former decision of the board of review is withdrawn. (Citing ACM S-1761, Doby, 2 CMR 704.) NCM 343, Feldt (1954), 16 CMR 436. III. APPELLATE COURTS AND AGENCIES § 37.1. Generally. § 37. Boards of Review UCMJ, Article 66 (f), provides that the Judge Advocates General of the armed forces shall prescribe uniform rules of procedure for proceedings in and before boards of review. In reliance upon this article, the Judge Advocates General promulgated a rule to the effect that a majority of the members of a board of review will constitute a quorum for the purpose of hearing and determining any matter referred to the board. The accused's appeal to the board of review was heard and determined with but two members present and participating in the decision. Held: The fixing of the number of members necessary to constitute a quorum is a procedural act. Accordingly, the rule promulgated by the Judge Advocates General was within the powers granted to them by Congress. (Citing Tobin v. Ramey, 206 F2d 505, 507; Floyd v. Quinn, 24 RI 147, 52 A 880, 886; Seiler v. O'Maley, 190 Ky 190, 227 SW 141; Ayrshire Collieries Corp. v. U. S., 331 US 132, 91 L ed 1391, 67 S Ct 1168; State v. Lane, 26 NC 434; Neff v. McKelvey, 134 Ohio St 47, 15 NE2d 770, 771; 21 CJS, Courts, § 183, p 292; 14 Am Jur, Courts, § 57, p 282 and other cases and authorities.) Also, UCMJ, Article 66 (a) approves and adopts a long established administrative practice that two members of a board of review may hear and determine any case properly referred to the full board. United States v. Petroff-Tachomakoff (No. 6139), 5 USCMA 824, 19 CMR 120; United States v. Goodrum (No. 6364), 5 USCMA 832, 19 CMR 128. Power of Air Force board of review to review case of dishonorably discharged airman tried while in confinement by an Army court-martial, see ACM 10196, Macaluso, CRT-M § 49.35. § 37.4. Qualification or disqualification of member. At the trial of the accused evidence of previous convictions was introduced. The document evidencing board of review affirmance, and therefore establishing prima facie finality of one of the convictions, was an attested copy of the board of review decision. The attestation enabling this copy to be received in evidence was signed by one of the board of review members who certified that the document was a true copy of the original on file in his office. Held: The board of review member became a witness for the prosecution in the trial forum by reason of his certification of the decision. However, he was not disqualified from participating in the decision of the board of review on the accused's case. There is no statutory disqualification of a board of review member who has been a witness at the trial and it is only necessary to determine whether the matter as to which he testified so involved him in the trial as to call into question the impartiality of the review. Under the circumstances herein there can be no basis for any imputation of unfairness. (Citing U. S. v. Moore (No. 4543), 4 USCMA 675, 16 CMR 249; U. S. v. McClenny (No. 5492), 5 USCMA 507, 18 CMR 131; U. S. v. Taylor (No. 5746), 5 USCMA 523, 18 CMR 147.) CGCMS 20127, Myers (1955) 18 CMR 461. § 37.5. Jurisdiction; decisions reviewable. Jurisdiction of board of review to consider a petition for a new trial after a petition for review by the Court of Military Appeals has been filed but such Court has returned the case to the board, see ACM 7063, Morrison, NEW TRIAL § 1.5. Power of board to correct fundamental errors, see United States v. Ferguson, TRIAL § 27.4. § 37.6. Disposition of case. Propriety of board of review action in setting aside findings and ordering rehearing upon finding that a confession of the accused had been improperly admitted in evidence, without examining evidence aliunde the confession, see United States v. Hernandez, EVID § 133.1. Action to be taken by the board of review where the accused has been denied an impartial review by the convening authority because of a violation of the attorney-client privilege in preparation of the post-trial clemency report, see ACM 8270, Bryant, SENT & PUN § 11.1. Board of review's disposition of case where the record is sufficient to support the findings but insufficient to support the sentence, see ACM S-9680, Lam, SENT & PUN §3.11. § 37.7. Reconsideration or rehearing; remand from Court of Military Appeals. Following the accused's trial, the convening authority approved the findings and sentence. Thereafter, a board of review affirmed. Two days later The Judge Advocate General mailed the board's decision to the officer exercising general courts-martial jurisdiction over the accused. That officer received the decision on 24 May 1954, and on 27 May 1954 the accused acknowledged receipt of the copy. On 26 May, one day prior to this service, his counsel had filed with the board of review a petition for reconsideration. The board concluded, however, that it lacked the power to entertain the motion. Held: The petition for reconsideration was timely for the reason that it preceded the filing of any petition for review by the Court of Military Appeals, or the lapse of thirty days from the date of the service of the board's decision on the accused. Accordingly, the board erred in holding that it lacked jurisdiction to entertain the petition. (Citing U. S. v. Sparks (No. 5336), 5 USCMA 453, 18 CMR 77.) United States v. Smith (No. 5516), 5 USCMA 460, 18 CMR 84, remanding CM 373211, Smith, 16 CMR 348. Following the accused's trial, the convening authority approved the findings and sentence and they were thereafter affirmed by a board of review. The decision of the board, rendered 12 April 1954, was transmitted three days later to the officer exercising general courtmartial jurisdiction over the accused. On 20 April 1954, the latter acknowledged receipt of the decision. Six days thereafter appellate defense counsel petitioned the board of review for reconsideration of its holding. The board concluded it was without jurisdiction to entertain the petition. Held: A board of review may reconsider one of its own decisions and in the instant case it had jurisdiction to entertain the offered motion for reconsideration since no petition for review by the Court of Military Appeals preceded the denied motion for reconsideration and thus pretermitted the exercise of board jurisdiction. The motion was, therefore, timely. (See 3 Am Jur, Appeal and Error, sec 796; U. S. v. Reeves (No. 453), 1 USCMA 388, 3 CMR 122; U. S. v. Corbin (No. 2703) 3 USCMA 99, 11 CMR 99.) In the absence of a change in the Uniform Rules governing proceedings before boards of review, a motion for reconsideration may be submitted at any time before a petition, or a certificate for review, has been filed with the Court of Military Appeals, or until the thirty-day statutory period providing for the filing of such papers has expired. (See, e. g. CM 371588, Estep, CMR —; ACM 5113, Shoffner, 5 CMR 465; ACM 4616, Brown, 4 CMR 650; ACM S-3127, Tribble, 7 CMR 739; CM 361098, Neuner, 9 CMR 479; CM 351164, Lyles, 6 CMR 440.) Gencrally, a civilian appellate court is powerless to grant a rehearing once its mandate has issued, in the absence of fraud or other extraor dinary circumstances. However, the service of the board of review decision on an accused does not equate to the issuance of a mandate so as to preclude motions for reconsideration. Only at the expiration of thirty days from the service of the opinion does the board's decision achieve that unqualified status which would serve, in terms of legal consequence, as an analogy to the mandate of a civilian court. (See 84 ALR 579; U. S. v. Reeves (No. 453), 1 USCMA 388, 3 CMR 122; U. S. v. Corbin (No. 2703), 3 USCMA 99, 11 CMR 99; U. S. v. Weeden (No. 3338), 3 USCMA 405, 12 CMR 161.) While a board of review has the authority, when the application is not made by the Judge Advocate General, to reconsider its decision prior to the time a petition for review has been served and filed by an accused, or a certificate by a judge advocate general has been filed, or a record of trial in a case involving automatic appeal has reached the Court of Military Appeals, there remains no authority to reconsider once one of these events has occurred. Also, a board of review lacks jurisdiction if a petition for reconsideration is filed after the expiration of thirty days from the date the accused is notified of its decision since at that point appellate review has already been completed and a terminus to litigation is required. Thereafter action must be taken through other routes. (Citing U. S. v. Jackson (No. 1052), 2 USCMA 179, 7 CMR 55; U. S. v. Reeves (No. 453), 1 USCMA 388, 3 CMR 122; UCMJ, Art 73; cf. U. S. v. Ferguson (No. 3289), 5 USCMA 68, 17 CMR 68 (opinion of Judge Brosman); Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 US 238, 88 L ed 1250, 64 S Ct 997.) Held also: The filing of a motion for reconsideration by the board of review delays (until the board's disposition of the motion) the inception of the thirty-day appeal period provided for by UCMJ, Art 67 (c), except that the filing of a second such motion would have no effect upon the thirty-day period unless the board of review granted the motion prior to expiration of that period. (Citing U. S. v. Sell (No. 1939), 3 USCMA 202, 11 CMR 202; U. S. v. Weeden (No. 3338), 3 USCMA 405, 12 CMR 161; CM 366858, Rice, 14 CMR 379; Citizens' Bank of Michigan City v. Opperman, 249 US 448, 63 L ed 701, 39 S Ct 330; Western Railway v. Basham, 249 US 164, 63 L ed 534, 39 S Ct 213; Federal Communications Commission v. Pottsville Broadcasting Co., 309 US 134, 84 L ed 656, 60 S Ct 437; Robertson and Kirkham, Jurisdiction of the Supreme Court of the United States by Wolfson and Kurland, 1951 ed, § 414; cf. 3 Am Jur, Appeal and Error, § 435; Southland Industries v. Federal Communications Commission, 99 F2d 117.) The statement in the Standing Operating Procedure for Air Force Boards of Review, as amended on 28 August 1952, to the effect that in those cases in which a motion for reconsideration is denied by the board of review, the period during which the accused may petition the Court of Military Appeals for a grant of review will not be tolled or extended by this action, and the petition must be made within thirty days from the time the accused was notified of the original decision of the board of review, is an incorrect exposition of the law. Moreover, the issuance of a similar Rule would not fall within the authority of the several Judge Advocates General under UCMJ, Art 66(f) since, if a petition for reconsideration is |