(concurring in part and dissenting in part):
The majority holds that when the defense seeks to distort the truth and this distortion is corrected by the staff judge advocate (SJA) with reliable evidence that is known to the defense, this correction is new matter that must be served on the defense.
The facts reveal that the SJA chose to label appellant’s service record as “excellent.” I cannot presume to know why that specific adjective was utilized. What I do know, however, is that the law as it currently exists does not give SJAs clear guidance as to what they may or may not include as part of the accused’s personnel records. My research reveals no cases that allow an SJA to include in the recommendation to the convening authority any mention of items which are inadmissible at trial, e.g., inadmissible reprimands, convictions, confessions, and so forth. In fact, the right to comment on an inadmissible reprimand in the first instance would probably be a surprise to most SJAs. Nonetheless, such a comment would be entirely consistent within the plain meaning of RCM 1106(d)(3)(B), Manual for Courts-Martial, United States (1994 ed.). See also RCM 1107(b)(3)(B)(iii).
With this lack of clear guidance, the SJA in this case faced numerous options: ignore the letter of reprimand, avoid characterizing appellant’s service at all, mention appellant’s prior service in neutral terms, or discuss the character of appellant’s service as if the letter was not there — the path chosen. Given the ambiguous state of the law in this area, I cannot conclude that the SJA was incorrect *238in initially mentioning appellant’s service without reference to the inadmissible reprimand. Moreover, this certainly cannot be labeled an “ambush” on defense counsel by the SJA.
Prospectively, I agree with Judge Cox that the SJA may in the first instance introduce the inadmissible letter of reprimand. The majority also appears to hint that it would have been proper for the SJA to mention the letter of reprimand in the first instance. Judge Gierke states: “In his original recommendation, the SJA noted the absence of previous convictions or nonjudicial punishment under Article 15 [Uniform Code of Military Justice, 10 USC § 815] and ‘excellent duty performance,’ suggesting that appellant was a first offender.” 44 MJ at 237. I agree that inadmissible reprimands and convictions could be relevant in the first instance. To hold otherwise would be to ignore the plain language of the Manual for Courts-Martial and keep SJAs in the dark as to the proper procedures to follow in their recommendations to the convening authority. In fact, considering the majority’s broad holding as to new matter, to hold otherwise may also actually have the perverse consequence of encouraging SJAs to resort to putting a paperclip on an inadmissible document or uttering a quiet whisper to alert the convening authority to these matters known to the defense.
In any event, regardless of how one might characterize the actions of the SJA in the present case, we must also consider the actions of defense counsel here. Counsel should always accurately set forth the facts and explain any unfavorable facts or inferences. We know that the Constitution, the Manual for Courts-Martial, and the Military Rules of Evidence do not necessarily preclude admission of suppressed evidence when an individual seeks to distort the true picture of' events. This emphasis on credibility has been an exception to the right to privacy, United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980); the right of protection against self-incrimination, see e.g., Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); the right to counsel, Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986); and many other rules.
In Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), the Supreme Court held that a 27-year old arrest could be used to dispel an incorrect picture of the defendant’s good character. In the present case, the numerous instances of criminal conduct admitted by appellant may be employed to dispel the misleading statement by defense counsel that he is “an exceptional NCO.”
The question presented by this case is whether the evidence of misconduct by appellant is new matter which must be served on the defense by the SJA.
If there is a new service, the defense would have the following options: (1) take out the language, “exceptional NCO”; (2) explain the letter of reprimand; or (3) make no changes. If effect, a new service requirement provides no incentive for defense counsel to be accurate, honest, and fulfill ethical obligations in the first instance.
The discussion to ROM 1106(f)(7) * provides:
“New matter” includes discussion of ... matter from outside the record of trial, and issues not previously discussed. “New matter” does not ordinarily include any discussion by the staff judge advocate or legal officer of the correctness of the initial defense comments on the recommendation.
Despite the assertions of defense counsel, appellant was not an “exceptional NCO,” and counsel knew it. Appellant’s personnel records show that not only was the SJA’s correction of this statement not based on “matter from outside the record of trial,” but also it was not based on matter outside the province of knowledge of the accused and his counsel. Similarly, just as new matter does not include the SJA’s discussion of the cor*239rectness of defense counsel’s comments on the recommendation, it should not include correction of a misstatement or misrepresentation of an undisputed matter known to the defense.
At the real heart of this case are the ethical obligations of counsel. Ethical issues often remind me of the saying by Mark Twain: “Everybody talks about the weather, but nobody does anything about it.” We should not ignore the opportunity presented to us now to do something about counsel’s ethical obligations.
When counsel sets forth evidence which is incomplete and misrepresents the character of appellant or distorts the evidence, the SJA may use reliable evidence within the “blue covers” of the record to rebut it. There is no obligation to serve this rebuttal as new matter. Contrast this to a situation where the SJA’s office disputes, based upon unknown documentation, appellant’s submission to the convening authority, United States v. Jones, 36 MJ 438 (CMA 1993), or where the SJA’s addendum sets forth his unexplained personal investigations to dispute the accused’s accusations, United States v. Norment, 34 MJ 224 (CMA 1992). In those situations there is. new matter within the meaning of RCM 1106(f)(7).
In this case defense counsel understandably sought to paint a picture of appellant as a good family man and a servicemember with a good military record. In doing so he urged suspension of appellant’s punitive discharge and reduction of his sentence. While defense counsel must zealously represent his client, he may not fail to deal forthrightly with the records in a case. Although counsel can and should “take the sting out” of any prior disciplinary action and other unfavorable information, he has an ethical obligation to be forthright with the tribunal and convening authority by acknowledging the existence of this information.
Rule 3.3 of the Model Rules of Professional Conduct — Candor Toward the Tribunal — requires counsel to be forthright in representing servicemembers. It provides:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
See Annotated Model Rules of Professional Conduct 329 (2d ed.1992).
Standard 4-1.2(f), ABA Standards for Criminal Justice, ABA Defense Function Standards, states: “Defense counsel should not intentionally misrepresent matters of fact or law to the court.” See ABA Standards for Criminal Justice: Prosecution Function and Defense Function (hereafter ABA Standards) 121 (3d ed.1993).
Standard 4-8.1(b) provides:
Defense counsel should present to the court any ground which will assist in reaching a proper disposition favorable to the accused. If a presentence report or summary is made available to defense counsel, he or she should seek to verify the information contained in it and should be prepared to' supplement or challenge it if necessary. If there is no presentence report or if it is not disclosed, defense counsel should submit to the court and the prosecutor all favorable information relevant to sentencing____
Id. at 233. The following commentary interprets this rule:
Counsel may not present facts that are known to be false in a manner that creates an inference that they are true. Counsel may not, for example, present facts concerning the defendant’s character that would suggest to the judge that the defendant does not have a prior record of crime if it is known that the defendant has such a record and that fact has not been disclosed to the court.
*240Id. at 235-36. These standards and the commentary also apply before'the convening authority.
Credibility of counsel is important because reputations spread fast — it is generally known who can be trusted and who cannot be. Thus, there is the obligation to present candidly the positions in the best light possible. In effect, counsel’s obligation to the tribunal and to the convening authority may very well be greater than counsel’s obligation to an accused. Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).
Even while setting forth the defense weaknesses in the best light, counsel can still zealously represent a client. As in any case, counsel must decide upon the best arguments on a client’s behalf based on the law of probabilities and the facts that are given. That is all I ask of counsel.
Our Rules of Evidence specifically state that the purpose of military law is truthfinding. MQ.R.Evid. 102, Manual, supra. See also H. Rothwax, Guilty: The Collapse of Criminal Justice (1996). Counsel have the obligation to accept responsibility for the evidence that has been offered and the reasonable inferences which can be drawn from other evidence known to exist. We stated in United States v. Drayton, 40 MJ 447 (1994), that, if the SJA had not mentioned in the original recommendation evidence from outside of the record, “it would have been proper to fight fire with fire by referring to it in his later addendum in order to rebuff the credibility of appellant’s new post-trial explanation of innocence.” Id. at 451.
In any event, the majority should at a minimum apply the harmless-error standard. I seriously doubt that there will be a suspension of the discharge when appellant attempted to use LSD on numerous occasions between May 15 and May 30, 1992. An investigation completed in late 1986 or early 1987 revealed that appellant had also purchased and subsequently used and smoked marijuana. Finally, attached to a resulting letter of reprimand was a sworn handwritten confession from appellant admitting to use of marijuana on several other occasions. I can see no possibility of harm under these circumstances.
I would affirm the decision below.
The rules concerning service of the staff judge advocate recommendation and service of new matters are the result of decisions from this Court. See United States v. Narine, 14 MJ 55 (1982), and United States v. Goode, 1 MJ 3 (1975).