(dissenting):
At issue in this case is trial counsel’s attempt to rebut defense counsel’s argument against a punitive discharge by asserting that the defense position meant that, “if you do something wrong, it doesn’t matter; you will be allowed to coast to an honorable retirement.” The defense objected on the grounds that the issue in the case was whether appellant should receive a bad-conduct discharge (BCD), and that there were “administrative possibilities” than being “allowed to coast to an honorable retirement.”
The centerpiece of the majority opinion is the following passage:
We hold that the likelihood of appellant being allowed to retire honorably if not sentenced to a punitive discharge was a fair inference from the evidence in this case. Appellant had 19½ years of service at the time of trial. He would have been entitled to special consideration if administrative discharge proceedings had been initiated after his court-martial.
49 MJ at 94. When this holding from the majority opinion is held up to the pertinent statements by counsel, it is like two ships passing in the night.
*97The prosecution did not refer to the fact that appellant would receive “special consideration” in any administrative proceedings or suggest reliance on any of the legal authorities cited by the majority. The prosecution made a categorical assertion — that appellant “will get an honorable retirement unless you give him a BCD” — a statement which left the incorrect impression that an honorable discharge was inevitable as a matter of law. The prosecution underscored this erroneous impression by subsequently suggesting that, without a BCD, appellant would “be allowed to coast to an honorable retirement.”
The majority states that the alternative of honorable retirement was a “fair inference” because appellant “would have been entitled to special consideration” in any ensuing administrative proceeding if not given a punitive discharge. 49 MJ at 94. There is, however, no “fair inference from the evidence” to be drawn. The prosecution’s argument was not in terms of an inference from evidence; rather, it was an unqualified assertion of the legal consequences that would flow from the failure to impose a punitive discharge. Counsel’s argument was not that appellant would receive special treatment by those deciding whether to administratively discharge him; rather, it was an argument that an honorable retirement would necessarily result unless appellant received a BCD.
The majority is appropriately careful in not asserting that the authorities cited in the majority opinion support the prosecution’s proposition that a servicemember convicted of wrongful possession and use of marijuana will necessarily be allowed to “coast to an honorable retirement” and retire honorably, as opposed to receiving an administrative discharge that could be less than honorable or otherwise affect retirement eligibility. Under the circumstances, the argument was error.
The military judge’s instructions did not cure the harm from this improper argument. First, as Judge Sullivan points out, the instruction did nothing to correct the misstatement; indeed, by overruling the objection, the judge implicitly might well have reinforced it. Second, he did not instruct the members to disregard the misstatement; in fact, by remarking that it was only “argument,” he might well have suggested to the members that it was legitimate for them to consider.
The Government has had ample opportunity to demonstrate that, as a matter of law, the Air Force would have been compelled to retire appellant honorably if his court-martial conviction did not include a punitive discharge. They have not done so. In the absence of such a showing, I cannot concur that the prosecution’s interjection into the trial of misinformation about a key consideration on sentencing, left uneorrected by the military judge, was harmless to appellant’s substantial rights. See Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a).