(concurring):
I agree that this case should be reversed for plain error. I believe that the court below went astray when it construed Article 59(a), Uniform Code of Military Justice, 10 USC § 859(a), as requiring an appellant in a plain-error case to demonstrate that the error affected the findings of guilty.
Issue I involves an error that was not challenged by timely objection at trial. Thus the inquiry on appeal involves three questions: (1) May the appellate court take notice of the error? (2) If it may take notice of the error, may the appellate court reverse the conviction? and (3) If the appellate court may reverse the conviction, must it do so?
The answer to the first question is found in the plain-error doctrine, Articles 66(c) and 67(c), Uniform Code of Military Justice, 10 *281USC §§ 866(c) and 867(c) (1994), respectively. Mil.R.Evid. 108(a), Manual for Courts-Martial, United States (1995 ed.), provides that “[e]rror may not be predicated” on evi-dentiary issues unless there is a timely objection at trial, but Mil.R.Evid. 103(d) permits an appellate court to “tak[e] notice of plain errors that materially prejudice substantial rights.” In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court defined plain error as having three components: (1) an error, (2) which is plain, ie., clear or obvious; and (3) that “affect[s] substantial rights.” Id. at 732-34,113 S.Ct. at 1776-78.1
In United States v. Claxton, 32 MJ 159, 162 (1991), this Court held that a Court of Military Review (now the Court of Criminal Appeals)2 enjoys broad review authority under Article 66(c), is not required to apply waiver, and thus is not constrained by the plain-error doctrine. This Court also held that “in the converse situation, where plain error is present, the Court of Military Review may not rely on waiver.” On the other hand, our appellate authority under Article 67(c) “is much more limited.” Id. In short, a Court of Criminal Appeals may take notice of errors of law, whether or not they were preserved by timely objection; our Court is constrained by the rules of waiver and the doctrine of plain error.
The second question is answered by Article 59(a) and Olano. Article 59(a) provides: “A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” This Article applies equally to our Court and the Courts of Criminal Appeals.
The legislative history of Article 59(a) makes clear that it was intended to preclude appellate courts from setting aside a finding of guilty for minor technical errors “of law which do not prejudice the rights of the accused.” Congress recognized also that, in most cases, an error that prejudices the substantial rights of an accused would require reversal. Hearings on H.R. 2498 Before a Subcomm. of the House Armed Services Comm., 81st Cong., 1st Sess. 1174-75 (1949). It is important to note that Article 59(a), like the third prong of the Olano test for plain error, speaks of impact on a substantial right, not prejudicial impact on the findings or sentence.
The plain-error doctrine “is permissive, not mandatory.” Olano holds that if an appellate court finds plain error, it may reverse “but is not required to do so.” 507 U.S. at 735, 113 S.Ct. at 1778. However, Article 59(a) is more restrictive than Olano, because it requires that “the error materially prejudices the substantial rights of the accused.” (Emphasis added.) Thus, any error that satisfies Article 59(a) will satisfy the less restrictive Olano test.
To answer the third question, an appellate court must determine if the error is harmless. Before applying harmless-error analysis, an appellate court must identify the nature of the error. If the error is nonconstitutional, an appellant must persuade the appellate court that there is a reasonable likelihood that the error affected the verdict. Kotteakos v. United States, 328 U.S. 750, 763-64, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946). On the other hand, if the error is constitutional, the burden shifts to the Government to persuade the appellate court beyond a reasonable doubt that the error did not affect the verdict. See Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967), explaining Fahy v. Connecticut, 375 U.S. 85, *28286-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963). Unlike Article 59(a) and the plain-error doctrine that look at the impact on “substantial rights,” harmless-error analysis looks at the likelihood that the error affected the verdict. The court below appears to have overlooked this distinction.
Applying the foregoing principles to this ease, I am satisfied that appellant demonstrated a plain error that “affect[s] [his] substantial rights,” thus satisfying Olano. I am also satisfied that he demonstrated that the error “materially prejudicefd] ... [his] substantial rights,” thus satisfying Article 59(a). Because the error was of constitutional dimension, the burden shifted to the Government to convince this Court beyond a reasonable doubt that the error did not affect the findings of guilty. The Government did not meet that burden. Accordingly, I join the majority in reversing the decision of the court below.
. I am not sure that our definition of plain error in United States v. Fisher, 21 MJ 327, 328 (1986), survived the Supreme Court’s definition in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Fisher, relying on United States v. Young, 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1, included a fourth element not required by Olano, that the error "had an unfair prejudicial impact on the juiy’s deliberations.” 21 MJ at 328. In Olano the Supreme Court specifically declined to address the question "whether the phrase 'affecting substantial rights’ is always synonymous with 'prejudicial.'” 507 U.S. at 735, 113 S.Ct. at 1778. We need not resolve the question in order to decide this case, and so I join the majority opinion.
. See 41 MJ 213, 229 n. * (1994).