(dissénting):
I agree with the majority’s application of Article 59(a), Uniform Code of Military Justice, 10 USC § 859(a), but would reach a different result. United States v. Chatman, 46 MJ 321, 324 (1997)(Crawford, J., concurring in the result). Appellant refused to submit any information to this Court or the court below to show possible prejudice. Thus, I would find that any error was harmless. See United States v. Catalani, 46 MJ 325, 330 (1997)(Crawford, J., dissenting); United States v. Mark, 47 MJ 99, 103 (1997)(Crawford, J., dissenting).
Appellant’s nearly 10 months of unauthorized absence from his unit at Camp Péndle-ton, California, was terminated by a civilian arrest for disorderly conduct in St. Louis, Missouri. Appellant could have been charged with desertion terminated by apprehension, for which the maximum punishment would have been a dishonorable discharge, total forfeitures, and confinement for 3 years. Para. 9e(2)(a), Part IV, Manual for Courts-Martial, United States (1995 ed.). Instead, appellant was charged with unauthorized absence terminated by an apprehension, for which the maximum punishment was a dishonorable discharge, total forfeitures, and confinement for 18 months. Para. 10e(2)(d), *109Part IV, Manual, swpra. Rather than being referred to a general court-martial, this case was referred to a special court-martial authorized to adjudge a bad-conduct discharge. The convening authority entered into a pretrial agreement which resulted in no confinement taking effect. Appellant was placed on excess leave pending this appeal, which allows him to have medical, commissary, and post exchange benefits.
At the end of appellant’s court-martial, he requested that his copy of the record of trial be served on Captain V. That same day, he gave Captain V a signed request entitled “request for restoration/clemency” in which appellant requested a Navy clemency and parole board to remit his punitive discharge and separate him with a general discharge.
Sometime later, Captain V left active duty and a substitute counsel, First Lieutenant H, was appointed. H was served with appellant’s copy of the record of trial on January 22,1993, and indicated he would submit matters pursuant to RCM 1105, Manual, supra. When H was served with the Staff Judge Advocate’s recommendation on June 10, 1993, he indicated on the receipt for service: no comments or corrections. Nevertheless, he did submit the clemency statement signed by appellant, but we do not know its contents since it was not attached. On July 13, 1993, pursuant to a pretrial agreement, the convening authority approved the sentence and suspended all confinement. H never contacted appellant and only submitted the clemency package appellant had signed.
The court below ordered the defense to submit the matters they would have given to the convening authority. Other than commenting on his military records, as of this late date, they have not submitted any information on appellant’s behalf.
This Court needs to allow some room for the possibility that counsel, based on reasoned judgment, would take no action in the case. Neither a court nor judge nor counsel needs to undertake a futile action. Inaction may constitute a legitimate post-trial strategy as demonstrated by actions of the convening authorities in prior cases. Cf. Siverson v. O’Leary, 764 F.2d 1208, 1216 (7th Cir.1985); Warner v. Ford, 752 F.2d 622, 625 (11th Cir.1985).
Failure to take action because of the past record of the convening authority should be done with consultation with the accused. Inaction may be based on objective observation of no action being reasonable. However, that does not mean that counsel was not active in deciding what to do in a particular case. Thus, the question of representation is not easily reducible to some physical activity. Silence or inaction can be a legitimate mode of representation.
“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). There may be “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984).
One of the most important post-trial rights that a military defendant has is the right to counsel free of charge. I do not condone the handling of appellant’s case or the failure of substitute counsel to contact appellant. However, appellant has not met his burden of showing what additional matters would have been submitted to the convening authority. Based on the benevolent actions of the convening authority in referring this case to a special court-martial and entering into a favorable deal, there is no evidence that appellant has been substantially prejudiced by the actions of substitute counsel.
I would affirm the decision below.