(dissenting):
I concur in the majority’s statement of decisional law concerning an accused’s right to the effective assistance of counsel. I do not agree, however, with their analysis of counsel’s conduct in this case.
Contrary to the majority’s conclusion, I believe the reeord of trial reflects a trial defense counsel effort that clearly meets the Strickland standards. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Scott, 24 M.J. 186 (C.M.A.1987). This is particularly true in light of Strickland’s admonition that “[j]udieial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. One need only read defense counsel’s thirteen-page opening statement to realize that counsel were prepared for trial. Defense counsel *675acknowledged that the case was one about credibility, recognized the appellant as a soldier with over twenty-four years of honorable service, and pointed out that the appellant had already attended his retirement ceremony. Counsel then proceeded to highlight that the defense would show that his accusers should not be believed.
During the trial the defense aggressively cross-examined government witnesses and presented evidence from ten witnesses on the merits, including the appellant. Evidence presented on the merits essentially covered appellant’s military career since he returned from Korea with his three-year-old daughter, M, in 1979. The defense established appellant’s assignments, the nature of appellant’s duties in those assignments, where the appellant lived during his assignments, when his daughters lived with him (they lived for extended periods of time with various members of his family), and extensive information about appellant’s family life and his relationship with his children. This information was presented through the testimony of the appellant, two of his sisters, fellow soldiers, and neighbors. The picture presented by the appellant was that of a hard-working, frequently deployed soldier, concerned about the welfare of his family. When the defense efforts failed to win complete acquittal (appellant was found guilty of seven of eighteen specifications, two of which were then dismissed by the military judge as multipli-cious), counsel had to face sentencing knowing that they had few arrows left in their quiver.
Appellate defense counsel contend that the appellant received ineffective assistance of counsel because defense counsel presented no good military character evidence on the merits and presented no evidence on sentencing.
During pretrial preparation appellant had been reluctant to assist counsel in preparation for sentencing. Instead, he focused his efforts on preparing for the trial on the merits. He provided names of potential witnesses that had the ability to provide testimony on both the merits and sentencing. Defense counsel interviewed these witnesses, as well as others independently identified by counsel. As is fairly typical, some of these witnesses did not desire to testify on sentencing (but would testify on the merits). Some would testify, in essence, that the appellant was a good person who couldn’t have committed the crimes, and others were willing to testify favorably regardless of the outcome of the trial on the merits. As trial strategy progressed, witnesses were selected to testify on the merits. The possible sentencing ease, however, was another matter.
Although appellant’s focus was on the merits, defense counsel proceeded to develop information that might be helpful in presenting a sentencing case. They obtained copies of evaluation reports concerning the appellant from him, but were unable to obtain copies of award citations. The appellant reviewed his Department of the Army (DA) Form 2A (Personnel Qualification Record-Part I) and DA Form 2-1 (Personnel Qualification Record-Part II) and informed his counsel that the information contained therein was accurate. At some point, the appellant presented counsel a draft unsworn statement, but after consultation with counsel, decided not to use it. Thus, as the trial approached, defense counsel had a well-developed strategy for the merits of the case, but little in the way of a separate sentencing “case.”
Defense counsel, however, did not overlook the importance of sentencing evidence, and clearly developed information, to include good soldier evidence, that could have been presented. Unlike the majority’s view of counsel’s action, I find the steps counsel took to be appropriate. They interviewed witnesses that had information pertaining to both the merits and sentencing. They requested documentary evidence from the appellant. While perhaps more could have been done to track down award citations and other documentary evidence (e.g., requesting a copy of the appellant’s Official Military Personnel File (OMPF)), I believe counsel’s efforts were reasonable. The best source of such information is usually the appellant. If an appellant tells his counsel that he is unable to produce such information, and that it is available in his official files, then counsel can make appropriate requests. Given the nature of the charges in this case, and that *676appellant only possessed two Army Commendation Medals, defense counsel were clearly within their discretion when they decided not to request his OMPF.
It is clear to me that the defense deliberately refrained from presenting any direct “good-soldier” evidence on the merits, as they were legitimately concerned about possible government rebuttal. The majority’s bold assertion that the appellant’s affair with a young enlisted soldier would not support an adultery charge is speculative. In any event, the affair need not have been criminal in order for it to call into question the appellant’s status as a good soldier.
After the defense rested, the government indicated a desire to call First Sergeant McCaffrie in rebuttal. The defense immediately objected because “it’s our understanding that this is for the purpose of rebutting a good soldier defense which has never been placed in evidence.” Clearly, the strategy to not use a “good-soldier” defense was conceived prior to trial, not as a response to subsequent questions about why a good soldier defense was not used. In addition, the record indicates that when questioning military witnesses about the appellant’s duty performance they refrained from asking opinion and reputation questions concerning appellant’s qualities as a good soldier. This was a fine line to walk, as the defense presentation certainly portrayed the appellant, in a general sense, as a good soldier. This approach reflects a well thought-out approach to the case, and should be commended, not criticized.
The decision to not present any sentencing evidence in this case, beyond the appellant’s unsworn statement, is easily understandable and well within established norms of competent representation. In a case where an appellant’s “whole” life has been placed before the court, there is usually little left to present that is not redundant. Such was the case here. After the government introduced the appellant’s DA Forms 2-1 and 2A, his entire career was, for all intents and purposes, before the court. Galling witnesses to add additional information about appellant’s personal background would have added little. Defense counsel could also have called witnesses to testify that the appellant was a good soldier. Their concern, however, about possible rebuttal evidence, still remained. The record established that the appellant had culminated a twenty-four-year Army career by serving as the First Sergeant of a Ranger training company. The appellant would not have been in such a position were he not a good soldier. Unlike a case involving a junior enlisted soldier with no record, the court had ample evidence of the appellant’s military career before it.
Documentary evidence, though apparently not extensive, was available to the defense in the form of Noncommissioned Officer Evaluation Reports. Defense counsel decided not to use them, having determined them to be laudable, but not outstanding.
The majority is apparently concerned that counsel did not present a sentencing case because matters in mitigation would have made no difference before this particular judge. I read their affidavits differently. The point they make is not that the judge would not consider evidence in mitigation, but rather that the judge responded favorably to presentations which were focused, did not repeat points already made during the case in chief, and did not include information of limited utility. The lead defense counsel in this case had tried many judge-alone cases before this judge, had observed trials over a three-year period involving other counsel before this judge, and had attended several classes taught by him. I believe counsel has the responsibility to use information known to him about the trial judge when deciding how to approach sentencing.
Further, I find nothing unusual in this trial judge’s “philosophy” about sentencing. Having placed the “whole man” before the judge during the trial on the merits, counsel could have competently decided to present no sentencing evidence, especially in light of their concerns about rebuttal to good soldier evidence. The decision to not pursue good soldier testimony is also buttressed by the nature of the offenses committed by the appellant. The appellant had little to gain, and perhaps much to lose, by presenting good soldier evidence. The majority’s statement that sentencing evidence is presented not *677only for the trial judge, but for the convening authority as well, overlooks the defense’s ability to present matters to the convening authority which were not considered by the court-martial. Rule for Courts-Martial 1105, Manual for Courts-Martial, United States (1995 edition).
The dynamics of the sentencing process in this ease support defense counsel’s tactical decision not to present additional evidence on sentencing. As stated by the majority, the appellant made an unsworn statement on sentencing in which he, in essence, adamantly denied committing the offenses. Defense counsel felt that the appellant’ unsworn statement was particularly compelling and powerful. It appeared to have a positive impact on the judge, who lost his usual in-court “poker-face.” The judge also appeared to be very closely watching the demeanor and nonverbal interaction between the appellant and his daughter. Defense counsel avers that he felt that presenting additional evidence at that point, or eliciting further comment from the appellant, would only dilute the impact the appellant’s statement had on the judge. Thus, defense counsel rested without presenting additional evidence.
This analysis is exactly what is required of counsel. Available sentencing evidence would have added little. There is no requirement for counsel to present evidence just to check a box. The decision made by counsel was right on the mark. He had to make a decision and he did. That call was well within his discretion and he should not be second-guessed now.
It is interesting to note that the judge took the extraordinary step of reconsidering his findings. That, in itself, lends considerable support to defense counsel’s assessment of the judge’s reaction to the appellant’s statement.
Finally, I believe defense counsel’s sentencing argument, although brief, to be competent advocacy. What did he do? He pointed out that the appellant was forty-six years old, and that the fifty-year sentence requested by government counsel would make the appellant ninety-six years old upon completion of his sentence. He noted the appellant’s long and faithful service to his country. He stressed that a long sentence would not help appellant’s daughter, M., who was already in the healing process, and would continue to get better. He proposed a reasonable alternative, ten years of confinement. Even then, the appellant would be fifty-six. Appellant’s daughter, M, would have hopefully been healed by then. Counsel pointed out that the appellant’s family would still be there for his daughters. Finally, counsel highlighted that, based on the judge’s comments, a ten-year sentence for a child molester would be much harder than such a sentence for a different crime. I find this to be advocacy. The same points could have been made in five, ten, or more pages. But, the strength of an argument is what counts, not its length.
Even if I were to find that counsel’s performance was deficient, thus violating Strickland’s first prong, I can find no prejudice to the appellant. I have complete confidence in the sentence of the court. I would affirm the findings of guilty and the sentence.