things, that: 'Military law on the subject as developed over a period of approximately one hundred years, was adopted.' There was applied the test of whether a reasonable person could conclude that the convening authority's interest in the case was anything but official.
In the case of United States v. Smith, 8 USCMA 178, 23 CMR 402, the Court of Military Appeals said that the convening authority is not disqualified on the theory that in directing the amendment of charges he had become a private prosecutor. It was pointed out that the convening authority is charged with deciding the nature and severity of the charges to be tried and the type of court to decide them. The Court stated:
'* * * But trial counsel's failure to carry out all the legal requirements necessary to perfect the record does not justify a conclusion that the convening authority should be disqualified under a theory that he ordered the charges to be amended and, therefore, had the regular proceedings been carried out, any person signing the charges would have been his alter ego. We have already shown the true accuser could not have been found to occupy that status.'
The decision then considered the problem of whether the circumstances indicated that the convening authority had an interest other than an official interest in the prosecution:
'All the evidence before the convening authority merely confirms a conclusion that he acted upon his legal officer's advice to have the specification amended to set out the true offense. The recommendation was appropriate, called for by the facts, and apparently not actuated by any desire to overcharge an offense. * * * Merely because the convening authority arrived at that conclusion and directed action be taken to frame the charges properly does not prove personalized interest. By statute, he is charged with the duty of deciding the nature and severity of the offenses to be tried and the type of court to decide the issues. Therefore, unless there is evidence showing some departure from that statutory role, his action in ordering the accused tried on a greater offense than the first one alleged is not of such a personalized nature as to disqualify him from further performing his official duties.'
While decisions of the United States Court of Military Appeals are not binding upon this Court, they are persuasive. The reasoning in the decision last mentioned, added to its presumptive correctness in the field of military law, entitles it to considerable weight.
I have concluded for the reasons heretofore discussed that plaintiff is not entitled to relief which he seeks here. Considering this memorandum decision as sufficient to constitute findings of fact and conclusions of law herein, the clerk is directed to enter judgment of 'no cause of action' in favor of the defendant and against the plaintiff, costs not to be allowed.