(dissenting):
I respectfully dissent from the majority opinion. Appellant, a staff sergeant, committed serious offenses and was sentenced by members to a bad-conduct discharge, 45 days’ confinement, and reduction to the lowest enlisted grade. As I said in United States v. Mark, 47 MJ 99, 103 (1997)(dissenting):
If this case is returned to a convening authority, what are his or her options? *76Restore the rank? ... [Confinement has already been served.] 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.
During this “downsizing climate,” this Court has returned numerous cases for new staff judge advocate (SJA) recommendations and actions, see, e.g., United States v. Carnley, 46 MJ 401 (1997); United States v. Parks, 46 MJ 114 (1996); and United States v. Dresen, 43 MJ 372 (1995); or for resolution of questions concerning post-trial representation by counsel, see, e.g., United States v. Tise, 43 MJ 446 (1995); United States v. Dickey, 43 MJ 170 (1995); and United States v. Williams, 43 MJ 149 (1995), but no favorable convening authority actions have been taken.
For nearly 50 years, this Court has declared that the post-trial phase constitutes a convicted servieemember’s best chance for clemency. See, e.g., United States v. MacCulloch, 40 MJ 236, 239 (CMA 1994); United States v. Massey, 5 USCMA 514, 18 CMR 138 (1955). The Rules of Evidence do not apply at that stage, and the “convening authority has absolute power to disapprove the findings and sentence, or any part thereof, for any or no reason, legal or otherwise.” United States v. Boatner, 20 USCMA 376, 378, 43 CMR 216, 218 (1971).
Regrettably, this Court has seen far too many unnecessary errors in the post-trial phase. Understandably, we have attempted to provide for a meaningful convening-authority review by returning many of these cases for new SJA recommendations and convening authority actions. However, since our return of these cases has neither stemmed the tide of post-trial errors by SJAs nor resulted in timely and meaningful review by convening authorities, I suggest that it is time to explore alternatives.
There are a number of options that could remedy this sloppy post-trial practice by the Government. First, the Clerks of the Courts of Criminal Appeals could return records of trial to convening authorities if post-trial errors are noted. Second, the Courts of Criminal Appeals could take corrective action when necessary. Most importantly, the Judge Advocate General (or equivalent), or his or her designee, could track these errors and note who was serving as SJA when the error occurred. This information then could be disseminated to the SJA or other appropriate individuals, including those who rate the SJA. Where a particular jurisdiction has too many errors, appropriate remedial action could be taken. This approach may be the most effective way to prevent continued errors in the post-trial phase. By the time a case reaches this Court, both the SJA and the convening authority have usually moved on to different assignments.
Any or all of the above options may eliminate many of the issues appearing before this Court and provide for meaningful review and action by convening authorities.