(dissenting):
“The truth, the whole truth, and nothing but the truth” is the key part of the oath that all witnesses must take before they are allowed to testify before a jury in America and most common-law countries. The triple use of the word “truth” in a short, one-sentence oath is unusual but warranted by the supreme importance that truth must play before a jury. A jury’s judgment would not be a just one if it was not based on truth. If you look at the record in the case of Kenth Stargell, it is apparent that the jury’s sentence was based on an untrue statement of fact made to them by the prosecution. See United States v. Johnson, 12 USCMA 602, 31 CMR 188 (1962). In my view, fair comment or argument on the evidence does not include a right to distort the truth, here, truth in sentencing. See generally United States v. Boone, 42 MJ 308, 314 (1995) (Sullivan, C.J., dissenting).
The trial in a nutshell was a simple one. Stargell was a staff sergeant with 19$ years of service who was convicted of one count of smoking marijuana cigarettes, and one count of possessing one marijuana cigarette. Stargell pleaded guilty. The prosecution wanted *95Stargell to get a bad-conduct discharge. Stargell wanted to avoid the discharge. This issue was the key one at trial and led to the prosecution’s main argument put before the jury — unless you give him a discharge as punishment, he will be honorably retired. This argument was not true. The jury was never told that, if Stargell was successful at avoiding the discharge at trial, he would probably have faced an administrative separation board. The jury was never told that there was still another option the Government could use to deny him an honorable discharge. That other option was that Stargell still could have had his honorable discharge denied by the Air Force Secretary when he applied to retire. Thus, the prosecution’s argument was a false one in a case where it was critical for the jury to hear “the truth, the whole truth, and nothing but the truth.”
As a starting point to analyze this case, I note that it was appellant who initially raised his impending retirement as a matter for consideration by the members in determining his sentence. At the time of his trial, he had served in the military for 19¡é years, and his court-martial was authorized to award him a bad-conduct discharge. See Art. 19, UCMJ, 10 USC § 819. The military judge properly allowed appellant to raise the loss of future retirement pay and benefits as a matter in mitigation. RCM 1001(c)(1)(B), Manual for Courts-Martial, United States (1995 ed.) (matters which “lessen the [adjudged] punishment”); see United States v. Becker, 46 MJ 141, 143-44 (1997); United States v. Greaves, 46 MJ 133 (1997); see also United States v. Sumrall, 45 MJ 207, 209 (1996).
Of course, once the question of retirement or forthcoming retirement is raised by the defense as a matter in mitigation, trial counsel can respond. See United States v. Blake, 30 MJ 184, 186 (CMA 1990); RCM 1001(d) permits the Government to introduce evidence which “rebut[s] matters presented by the defense.” More particularly, RCM 1001(c)(2)(C) provides that “[t]he prosecution may ... rebut any statements of fact” in a convicted servicemember’s unsworn statement. Finally, RCM 1001(g) permits trial counsel to “argue” that an accused’s expected retirement is not a matter which should lessen the punishment which a court-martial may adjudge.
Nevertheless, trial counsel must respond fairly and accurately in rebutting a' defense mitigation case based on the disproportionate effect of a punitive discharge on a service-member near retirement. See Blake, supra at 187. In presenting his case in rebuttal, trial counsel cannot dispense with the rules of evidence and use his argument to parade unevidenced matters before the members. See United States v. Johnson, supra. Moreover, he certainly cannot mislead the members by using his argument to provide them false or unreliable information for consideration on the question of an appropriate sentence. See generally United States v. Zakaria, 38 MJ 280 (CMA 1993). Trial counsel’s .arguments in this case violated both these principles. See generally United States v. White, 36 MJ 306, 308 (CMA 1993).
Trial counsel’s initial argument contained the affirmative misstatement that appellant will receive “honorable retirement” if the members did not sentence him to a punitive discharge. This theme was hit later again in closing by the prosecutor. However, no evidence was presented in this case concerning military retirement procedures or standards for convicted servieemembers who do not receive a punitive discharge. Moreover, no other evidence was presented from which it could be reasonably inferred that the Secretary of the Air Force would honorably retire appellant despite his court-martial convictions. Finally, there was no evidence before the jury (and the judge did not instruct) that administrative possibilities other than retirement existed for the convicted servicemember in these circumstances, such as an administrative discharge board. 10 USC § 8914 and paras. 5.47.2 and 5.48.4, Air Force Instruction 36-3208 (14 Oct. 1994).
The military judge’s instruction to the members (“you’re advised that the decision that you have to make is not a vote to retain or separate the member but whether or not to give the accused a punitive discharge as a form of punishment”) did not cure the misin*96formation that was given to the jury. The instruction did not particularly respond to the “retirement” misinformation provided by assistant trial counsel or direct the members to completely disregard it. This omission was particularly confusing in appellant’s case where the- military judge further stated that the defense’s “objection is overruled,” and assistant trial counsel continued to argue that a sentence by the members of no punitive discharge would effectively characterize appellant’s service as honorable and bring about his retirement. See Greaves, 46 MJ at 137-38 (inconclusive sentencing instructions on retirement are insufficient).
The bottom line of this case, the message that went before the jury, was that if the jury did not give appellant a punitive discharge, appellant would get to retire. This was legally and factually wrong. On this record,1 we can’t allow false information to be given to the jury on such a key point, at such a critical time, without the judge unequivocally correcting this misinformation. A trial must be fair. To be fair, a trial must be based on truth.
The judge (and probably the prosecutor) knew this information about retirement was wrong and knew the truth. The truth was that, even if the jury did not give Stargell a discharge, Stargell would probably be sent by the command quickly before an administrative separation board and that board would probably discharge Stargell before he reached the 20 years’ service required for retirement. Nevertheless, the government theory, “if no BCD, Stargell gets to retire,” was sold to the jury. A decision by the factfinder should be the same whether the decision was by a judge or a jury. The prosecutor would never have made this argument to the judge in a judge-alone trial because a judge would have recognized it as a false argument. The prosecutor should not have been allowed to influence the jury by a false argument.
The prosecutor (by allowing the jury to think that they were the only ones who could prevent Stargell from “honorable retirement”) changed the jury’s function from giving punishment according to the crime to making retirement decisions for the Air Force Secretary. This was false and wrong and not cured by the judge’s subsequent instructions. The judge should not have allowed this to happen. A jury should be making a decision on punishment, not on retirement. Accordingly, since the jury’s decision was tainted by false argument, I dissent and would send this case back for a new sentencing hearing. See United States v. Rust, 41 MJ 472, 478 (1995); United States v. Zakaria, supra.
. The majority’s weak attempt to supplement this record with evidence of "special consideration” which would be afforded appellant if not punitively discharged conflicts with this Court’s decision in United States v. Perry, 48 MJ 197 (1998). More importantly, whatever “special consideration” is, it is clear that no evidence of this practice was presented to the jury in this case. Therefore, the stubborn fact remains that the jury was given wrong information on this matter.