(dissenting):
Article 59(a), Uniform Code of Military Justice, 10 USC § 859(a), has no exceptions from application of its harmless-error standard. Thus, that standard should be applied in this case. If this case is returned to a convening authority, what are his or her options? Restore the rank? Set aside the forfeitures? The real issue is the discharge. I would suggest that, in the present downsizing climate, appellant’s discharge would not be suspended or set aside because any convening authority would prefer to have a vacancy rather than this appellant in the unit.
Appellant was convicted of a vicious assault on a petty officer in the execution of his office. After refusing to obey an order and having a verbal confrontation with the victim, appellant left the area but returned nearly an hour later. WTien the victim had his back turned while seated, appellant hit him in the head with a pipe causing a gash in the forehead and the need for emergency treatment. The victim’s headaches continued for approximately 2 weeks. Additionally, although the pretrial agreement included pleading guilty to disobedience of an order, eventually, because of inability by the judge to find a provident plea, the agreement was amended and a finding of not guilty was entered as to that specification.
In addition to the aggravated assault upon a petty officer in the execution of his office, appellant had been given punishment under Article 15, UCMJ, 10 USC § 815, on May 5, 1993, for dereliction of duty, and an Article 15 on July 19, 1991, for 3 specifications of disrespect and assault. Appellant was lucky that this case did not go to a general court-martial. As I indicated, the discharge would not be suspended by any convening authority, let alone set aside, so I see no need to require what undoubtedly would be a fruitless exercise.