(dissenting):
By focusing solely on the military status of the person who prepared the staff judge advocate’s (SJA) recommendation, instead of the content of the recommendation, the majority perpetuates the fundamental flaw of *765the Smith decision. In the Smith Court’s view, an otherwise correctly prepared recommendation (presumably even one that recommends action favorable to the accused), and to which counsel for the accused had no objection, invalidates the action of the convening authority if the person who signed the recommendation was not a commissioned officer.
This Court has previously held that an action taken by a convening authority without the advice of a staff judge advocate or legal officer, is erroneous but not null and void. United States v. Dunbar, 28 M.J. 972 (N.M.C.M.R.1989), aff'd on other grounds, 31 M.J. 70 (C.M.A.1990). Furthermore, if the error was procedural rather than substantive and does not materially prejudice the rights of the appellant, the error is harmless. United States v. Murphy, 26 M.J. 658, 659 (N.M.C.M.R.1988).
Yet, the majority now would invalidate the convening authority’s action because, as the Smith Court said, when “recommendation and the exercise of broad discretion are involved,” a reviewing court should not speculate as to the qualifications of one not statutorily authorized to make the recommendation. United States v. Smith, 34 M.J. 894 (N.M.C.M.R.1992).
The SJA recommendation does not exist for its own sake but to assist the convening authority in deciding what action to take on the sentence in the exercise of command prerogative. R.C.M. 1106(d)(1). As such, the recommendation is unalterably a preliminary requirement like the pretrial advice required by Article 34, UCMJ. Such advice can involve complex legal questions, yet failure to obtain such advice is an error that if not objected to is waived unless there is actual prejudice to the accused. United States v. Murray, 25 M.J. 445, 449 (C.M.A.1988). I would apply the same legal principles to the SJA recommendation.
In this case, the SJA recommendation included an error as to the pleas, failed to indicate that appellant had earned a deployment ribbon, and identified appellant’s clemency petition as having been submitted by the defense counsel. These types of error are not uncommon, and, absent plain error, are waived by failure of counsel to object. By focusing on the military status of the preparer, the Court has made the form of the SJA recommendation more important than its content.
Furthermore, while the Court properly recognizes the significance of the convening authority’s action, it disregards the experience and judgment of the senior officer who takes the action merely because a junior officer did not sign the recommendation. Convening authorities are usually more senior officers with command experience. Given reasonably accurate factual information, convening authorities are, in my view, fully capable of determining whether a sentence should be reduced as a matter of command prerogative.
I also disagree with the majority’s application of the Supreme Court’s decision in Ola-no. The majority has found a readily available way to side-step the rigorous four-prong Olano test ordinarily used to determine when an appellate court can and should correct a forfeited error. The Court has simply determined that lack of statutory authorization is the kind of error that does not require a showing of prejudice but, instead, falls within a “special category” that can be corrected regardless of its effect on the outcome.
Implied by the majority’s decision is the recognition that no specific prejudice can be shown and that, if the test for unfair prejudicial impact required by Olano were applied, the error would be forfeited by the failure of defense counsel to object. With this implicit conclusion I agree fully. What I do not agree with is the underlying assumption that this Court is free to depart from the requirements of Olano by simply declaring them not applicable to a particular type of error. I believe something more is required. A comparison of the following two cases suggests what that something may be.
An approach similar to that taken by the majority in this case was taken by the U.S. Army Court of Criminal Appeals in a case that involved racial remarks in a prosecutor’s summation. That court held that such remarks “affect substantial rights” and thus rise to the level of plain error, even without a *766showing of specific prejudice, because the appellant has a substantial and fundamental right to a trial free of the improper consideration of race. United States v. Thompson, 37 M.J. 1023, 1027 (A.C.M.R.1993). Four judges dissented arguing that: (1) the majority erred in finding the case to be an exception to the general rule in Olano, (2) there was no prejudice in the judge only trial, and (3) it is bad policy to encourage defense counsel to remain silent when errors occur at trial that could prejudice their clients.
A Federal Circuit Court of Appeals has also used the “special category” exception to satisfy Olano’s third prong. United States v. David, 83 F.3d 638 (4th Cir.1996). In that case, however, the court relied on Supreme Court precedent to support its holding. There, the court held that since, under Supreme Court precedent, failure to instruct on an element of a crime is an error not subject to harmless error analysis it necessarily “affect[s] substantial rights.” David, 83 F.3d at 647. The court relied on Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), which held that a constitutionally deficient reasonable doubt instruction is not subject to harmless error analysis.
In Sullivan, the court held such error' to be in the same category as total deprivation of the right to counsel, trial by a biased judge, and denial of the right to self-representation. Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081-82. The Sullivan court also distinguished between “structural defects” that defy analysis by “harmless error standards” and errors that occur during presentation of the ease to the jury and may therefore be quantitatively assessed in the context of other evidence presented. The error was found to deny a basic protection “without which a criminal trial cannot reliably serve its function.” Sullivan, 508 U.S. at 281, 113 S.Ct. at 2083 (citation omitted).
I believe military appellate courts also must rely on Supreme Court precedent to determine, under Olano, when an error is such that a showing of specific prejudice is not required or the error falls within the “special category” that can be corrected regardless of its effect on the outcome. I would apply the Sullivan standard by analogy to post-trial processing errors and hold that Olano applies unless the appellant was denied a basic protection without which a convening authority’s action cannot reliably serve its function. Under our holdings in Dunbar and Murphy and consistent with the legal principles established by our superior court in Murray, the answer is clearly that he was not.
Accordingly, I respectfully dissent.