(dissenting):
In his submission to the convening authority under RCM 1105, Manual for Courts-Martial, United States (1994 ed.), Welker’s defense counsel asserted that trial counsel had committed legal error by improperly introducing “evidence of [Welker’s] uncharged misconduct” during trial counsel’s cross-examination of the victim, Welker’s stepdaughter. The staff judge advocate (SJA) had to respond to this allegation in his recommendation to the convening authority under RCM 1106(d), see United States v. Hill, 27 MJ 293, 296 (CMA 1988), but he never acknowledged in any way this assertion of legal error.
Then, during appellate review in the Court of Military Review (now Court of Criminal Appeals), Welker asserted through appellate defense counsel that the SJA had erred by not responding to his RCM 1105 assertion. The Court of Military Review, however, apparently misread the appellate assignment of error (which included two claims regarding cross-examination of appellant and one concerning cross-examination of the alleged victim (CMR Brief at 7)) by grouping all three claims as concerning cross-examination of the accused himself — and finding these claims meritless. 37 MJ at 1069.
Thus, in this Court, Welker’s contention is heard for the first time. Rather than returning the record for consideration of this claim by the SJA and convening authority and then by the Court of Criminal Appeals, however, the majority cuts to the chase to see whether trial counsel’s alleged misstep “resulted in a violation of appellant’s substantial rights,” citing Hill. 44 MJ at 88. Concluding, to the contrary, that the prosecutor’s cross-examination was proper, the majority affirms the decision below.
I do not agree that Hill supports the majority’s articulation of the appropriate response of an appellate court when faced with oversight by an SJA like the one in this case. *91Instead, applying the standard that I read Hill to set out, I believe that appellant is entitled to have his claim of improper cross-examination considered by all reviewing authorities below.
Appropriateness of Remand under Hill
After holding in Hill that RCM 1106(d) requires an SJA to respond to an accused’s RCM 1105 assertion of legal error at trial, the Court turned to the question upon which the instant appeal turns: “If the staff judge advocate fails in his duty to respond to allegations of legal error, must an appellate court return the case to the convening authority or may the appellate court itself determine whether the accused has been prejudiced?” 27 MJ at 296.
After noting the logic behind each option, the Court “conelude[d] that, in most instances, ... [such an omission by the SJA] will be prejudicial and will require remand of the record to the convening authority for preparation of a suitable recommendation.” On the other hand, if an appellate court finds that a post-trial assertion of error “clearly has no merit,” an accused is not entitled to a remand just so he can seek what would amount to an undeserved windfall. 27 MJ at 296.
That does not mean, however, that a remand is appropriate only in the converse situation — that is, only when an appellate court finds that the post-trial assertion of error clearly has merit. If that were so, it would be a classic waste of resources for an appellate court to remand the case for consideration of that clearly meritorious error, rather than simply to redress the wrong, right then and there.
Accordingly, I read the opinion in Hill most logically to say this: If an appellate court concludes that an accused’s post-trial assertion of error clearly is without merit, the accused is not entitled to the hollow gesture of a remand so that the convening authority can consider a baseless claim. Implicitly, at the other extreme, if a post-trial assertion clearly is correct, common sense and efficient use of resources would seem to dictate that an appellate court remedy the injustice perpetrated by the trial error. “[I]n most instances” of post-trial claims of error, however, see 27 MJ at 296, the merit or lack of merit is not so clear-cut, and an accused is entitled to make his case to the convening authority. I read Hill to have said as much when I wrote for the Court:
Thus, a Court of Military Review is free to affirm when a defense allegation of legal error would not foreseeably have led to a favorable recommendation by the staff judge advocate or to corrective action by the convening authority. Otherwise, failure by the staff judge advocate to respond to an allegation of legal error, which has been submitted in a timely ma[nn]er whether before or after the recommendation of the staff judge advocate has been served on the defense, requires remand to the convening authority for comment by the staff judge advocate. In this way, we honor the broad discretion conferred on the convening authority by Congress and at the same time assure that the accused receives the benefit of the informed exercise of that discretion intended by the Manual for Courts-Martial.
27 MJ at 297.
Appellant’s Assertion of Trial Error
At this point, then, I believe that the analysis must turn to whether Welker’s assertion of trial error clearly is without merit; only if it is may this Court affirm the decision below without returning this case for a new SJA recommendation and convening authority action.
As the majority opinion points out, Welker pleaded guilty to several specifications that alleged a variety of serious sexual offenses involving his minor stepdaughter; one of these asserted that appellant had committed the crime of carnal knowledge with the victim “on several occasions” “between October 1987 and July 1989.” He pleaded not guilty, however, to several other charges of sexual misconduct involving the same girl; one of these specifications, which was dropped by the prosecution, had alleged that Welker had directed and watched sexual intercourse between this same girl and her brother.
*92As the majority opinion indicates, the victim testified on direct examination by defense counsel during the presentencing stage of this trial that she did not want appellant to go to jail but, instead, wanted him to stay with the family. 44 MJ at 87. I have no quarrel with the majority that, in turn, the prosecution was entitled to test her mettle in this regard in the context of the offenses of which appellant was convicted. Although the majority opinion implies that that was the extent of the prosecutor’s impeachment effort, regrettably that most clearly is not the case.
For instance, at one point trial counsel .asked the young girl whether she wanted appellant to return home “even though he had sexual relations with you almost every time your mother went to work while you were living in Hawaii.” Despite defense objection, the witness was directed to answer. A conviction of having carnal knowledge of this girl “on several occasions” over a period of over ljá years is not tantamount to sex “almost every time” her mother went to work, and no evidence of record supports this blatant embellishment.
Then, almost immediately thereafter, trial counsel was permitted to ask the victim— again, over defense objection — the following question:
[C], given that your father had you and your younger brother, [M], perform sexual acts on each other while he watched, you still want him to come home and not go to jail?
Again, no evidence was before the factfinders on this alleged misconduct^ — misconduct that was charged in a specification that was affirmatively dropped by the prosecutor — misconduct that might well be viewed as even more disturbing than what appellant had pleaded guilty to — misconduct that, as well, might be expected to trigger an escalation of the sentence.
For his part, the military judge did instruct the members about this “uncharged misconduct” being dug out by the prosecutor — “I point specifically to • this business about sexual relations ‘every time your mother went to work,’ that sort of thing.” He admonished the members that such evidence could be used by them “for a very limited purpose, and only for this purpose, and that is to test the basis of this particular witness’ opinion that she would like her father to return home and her credibility generally.” Unfortunately, it may well be that such an instruction is akin to one to ignore the pink elephant that just walked across the courtroom.
Is this claim of prejudicial error clearly correct, so as to warrant our immediate remedial action? I am unsure, given the seriousness of the admitted sexual transgressions and the arguably mitigating effect of the instruction. Is it clearly without merit, however? Not in my view.
In this context, then, and given my reading of the standard set out in Hill, I would remand this case for appropriate consideration by the convening authority after treatment in the SJA’s recommendation. That is what the Uniform Code of Military Justice provides appellant, and that is what I would assure him.