(concurring in part and dissenting in part):
I concur in the majority’s decision to affirm the findings and its conclusion that no material prejudice accrued from the Blunk error. However, I must respectfully dissent as to the majority’s decision to affirm the sentence. In my view, the evidence of a prior summary court-martial (SCM) did not comply with relevant statutory law, Presidential rule, binding judicial precedent, departmental regulation and service regulation. Despite the absence of objection, the evidence was inadmissible per se. Under the circumstances of this case, I conclude that the appellant suffered material prejudice in the sentence as a result of the improper admission of the evidence and would reassess the sentence.
The Booker/Mack Rule
Like the appellant, Private Larry D. Booker, U.S. Marine Corps, received SCM punishment before his conviction for assault and battery at a higher court-martial.1 United States v. Booker, 5 M.J. 238 (C.M.A.1977). In fact, he went to SCM twice. The Government offered evidence of these SCMs to escalate the maximum permissible punishment. The military judge admitted this evidence, although the Booker decision does not say whether there was an objection at trial. On appeal, Private Booker contended the military judge erred in admitting this SCM evidence as prior convictions, based on a recent U.S. Supreme Court decision that held that a SCM was not a criminal proceeding within the meaning of the Sixth Amendment to the U.S. Constitution. Id. at 239.
In Booker, the Court of Military Appeals discussed the importance of obtaining the advice of a “legally trained person” before deciding whether to exercise the statutory right to object to trial by SCM. Id. at 243. The Court then established what has come to be known as the “Booker Rule:”
[W]e believe it mandatory that the individual to be disciplined must be told of his right to confer with an independent counsel before he opts for disposition of the question at either of the above levels [Article 15, UCMJ, nonjudicial punishment (NJP) or Article 20, UCMJ, SCM]. Absent compliance with this proviso, evidence of the imposition of discipline under either is inadmissible in any subsequent trial by court-martial. A waiver of the statutory right under Articles 15 and 20 for removal to trial in a criminal proceeding must be in writing.
Id. (emphasis added)(footnote omitted). The Court then described the requirements for this waiver and the duty of the military judge as an evidentiary gatekeeper before admitting evidence of prior discipline:
We believe that the Supreme Court’s and this Court’s longstanding position of requiring that every reasonable presumption against waiver of the assistance of counsel be indulged ... mandates that the record affirmatively demonstrate a valid personal waiver by the individual of his right to trial in a criminal proceeding rather than having us infer or assume one solely on the basis of a single cheek in a box on a prepared form. If the exhibit does not *678affirmatively establish a valid waiver, the trial judge must conduct an inquiry on the record to establish the necessary information.
Id. at 244 (citations and footnotes omitted). Two years later, the Court clarified and extended its position.
In United States v. Mathews, the Court applied the Booker Rule to prior NJP under Article 15, UCMJ. In doing so, the Court also explained that where the proffered documentary evidence of prior NJP does not clearly show the accused’s waiver of his right to consult with counsel prior to acceptance of NJP, and “where the defense counsel affirmatively waives objection to the admissibility of the exhibit, the onus then falls upon the trial judge to make the record.” United States v. Mathews, 6 M.J. 357, 358 (C.M.A.1979)(emphasis added).
Soon thereafter, the Court revisited the general issue. In United States v. Mack, the Court considered whether the military judge committed prejudicial error by admitting evidence of prior NJP. In its analysis, the Court stated:
The Manual for Courts-Martial provides in paragraph 75b(l) that where the defense [counsel] objects to the data [as to the accused’s service] as being inaccurate or incomplete in a specified material particular, ... the military judge ... shall determine the issue. Objections not asserted may be regarded as waived.
This subparagraph does not apply to records of nonjudicial punishment. Paragraph 75d contains similar provisions as to personnel records, which “include all those records made or maintained in accordance with departmental regulations which reflect the past conduct and performance of the accused.” Under our decisions the failure to object to an official record because it was not completed as required by applicable regulations has not relieved the military judge of the duty to exclude the document. Whatever changes, if any, may be made by the new Military Rules of Evidence, which took effect on September 1, 1980, we conclude that in trials before that date a Form 2627 [the Army form offered by the Government to show the prior NJP] lacking the information about access to counsel which is required on the face of the form is inadmissible despite defense failure to object, unless the Government independently establishes that such information was provided to the accused before he received nonjudicial punishment.
United States v. Mack, 9 M.J. 300, 321 (C.M.A.1980)(emphasis added) (citations omitted). By this point, it should be clear that the Court had committed itself to the Booker Rule as to both NJP and SCM evidence and that it viewed the military judge as the gatekeeper for such evidence irrespective of any defense objection. As the Court suggested in Mack, it remained to be seen what its position would be once an appropriate case presented itself under the auspices of the newly-enacted Military Rules of Evidence, Manual for Courts-Martial, United States, 1969 (Revised ed.), Chapter XXVII (promulgated 1 Sep 1980).
That case soon appeared in the form of United States v. Dyke, 16 M.J. 426 (C.M.A. 1983), a unanimous decision. In Dyke, the Government offered a record of NJP lacking any signatures, including signatures attesting that Private Dyke had been advised of his rights and had chosen not to demand trial by court-martial. Without objection, the military judge admitted the exhibit. In its analysis, the Court first noted that “[i]n cases that arose prior to the Military Rules of Evidence, we held that the military judge had an obligation sua sponte to exclude a document that clearly did not comply with applicable regulations.” Dyke, 16 M.J. at 427. Examining Mil. R. Evid. 103(a)(1), a rule quoted by my brother in his majority opinion, the Dyke Court noted that, generally speaking, failure to state an objection at trial waives the issue on appeal. However, Mil. R. Evid. 103(d) states an exception for “plain errors that materially prejudice substantial rights although they were not brought to the attention of the military judge.” The Court then made a significant comment:
Although the Military Rules of Evidence were intended to place additional responsibility upon trial and defense counsel, we do not believe that they were meant to pro*679vide a license for slipshod performance by military judges. [The evidence of NJP] was so incomplete on its face that the judge should have excluded it on his own motion.
Dyke, 16 M.J. at 427. While Dyke represents an extreme example of lack of compliance with service regulations in documenting evidence of prior discipline, I read this case as an important indication of the Court’s view of the interplay between the judicially-created Booker Rule (and its emphasis on the role of the military judge) and the Presidentiallycreated Military Rule of Evidence on waiver of issues (and its emphasis on the role of defense counsel). Of particular note, the Court had an opportunity in Dyke to scale back, or even overrule, Booker and its progeny in light of the new Military Rules of Evidence and declined to do so.
Thus, I believe that, for the last 20 years, the Booker Rule has stood as a solid fence against the entry of non-compliant evidence into the sentencing arena. The military judge stands at the only gate in the fence. He may allow only compliant evidence through that gate, regardless of defense objection.
In 1995, this court attempted to tear down that fence. In United States v. Kelly, 41 M.J. 833, 845 (N.M.Ct.Crim.App.1995), we held that, based on intervening U.S. Supreme Court ease law, a “reexamination of Booker” was timely and appropriate and concluded that there was “no basis in law” to continue to apply the Booker Rule. Accordingly, we decided that the military judge did not err in admitting evidence of prior SCM punishment that did not comply with Booker, over defense objection. Since the defense did make a trial objection in Kelly, its value in analyzing the issue before us is limited. However, our superior Court’s treatment of our holding in Kelly is instructive.
The Court of Appeals for the Armed Forces first rejected this Court’s “effort to free itself from what appears to be binding precedent.” United States v. Kelly, 45 M.J. 259, 263 (1996). In upholding and reaffirming the validity of the Booker Rule, the Court emphasized and explained the need for the rule:
The right [to refuse nonjudieial punishment and summary court-martial punishment] ... is little more than theoretical if that accused is unaware of it when he decides whether to accept nonjudieial punishment or summary court-martial. An accused is not well-served by that situation, and neither is the system that Congress so artfully designed.
Kelly, 45 M.J. at 264. The majority opinion makes much of language in Kelly referring to an accused’s right to object to non-compliant evidence, but that emphasis is misplaced in the case before us, which involves the specific and narrow question of admissibility in the absence of objection. Kelly does vividly illustrate the continuing viability of the Booker Rule despite this court’s misguided attempt to abandon it.
I now turn from judicial treatment of the Booker Rule to regulatory implementation of the Rule. The Judge Advocate General of the Navy has promulgated a regulation that adopted, as a matter of binding policy for the Department of the Navy, the Booker Rule:
Failure to provide the opportunity for an accused to consult with counsel prior to nonjudieial punishment does not preclude the imposition of nonjudieial punishment; it merely precludes the admissibility of the record of nonjudieial punishment in aggravation at a later court-martial (unless the accused was attached to or embarked in a vessel at the time of the imposition of nonjudieial punishment)
Manual of the Judge Advocate General, Judge Advocate General Instruction 5800.7C § 0109 (Ch-3, 27 Jul 1998)(JAG Manual)(emphasis added). When the Judge Advocate General chooses to take a specific evidentiary question out of the universe of thousands of evidentiary issues that come before military judges and determines that regulatory policy is necessary, I believe that sets an unmistakable bar to admission of evidence of prior NJP that does not comply. Admittedly, the plain language of this provision applies only to NJP. However, given the general applicability of the Booker Rule to both NJP and SCM, the spirit of the Rule should compel military judges and this court to also apply *680this JAG Manual provision to evidence of punishment by SCM.
In addition, the U.S. Marine Corps Individual Records and Administration Manual (IRAM), Marine Corps Order P1070.12K (Ch-1, 14 Jul 2000), includes rules on documentary compliance with the Booker Rule for punishment by SCM. Section 4008 controls the preparation of records of summary, special and general courts-martial. In preparing the page 13 form referred to in the majority opinion, (NAVMC(13)(REV.9-88)), Section 4008, paragraph 2b(l) calls for an appropriate entry on the reverse side of the page 13 indicating that Marine has been advised of his right and opportunity to consult with counsel regarding the pending SCM. That entry is missing from the appellant’s page 13. Prosecution Exhibit 1. Moreover, we cannot find any such entry elsewhere in the record. As such, the page 13 has not been prepared in accordance with Roo/cer-based, pertinent regulation and is not fair on its face.
The majority opinion correctly observes that these regulations do not explicitly establish evidentiary bars to admissibility in the event of failure to document Booker advice. However, when considered in the light of the Booker Rule, a rule that has never been overruled, the regulations emphasize the importance of affording the opportunity for attorney counseling in our system of military justice. Moreover, the regulations do strongly suggest,2 as a minimum, that documentation of Booker counseling be completed. How are counsel and the military judge to know whether such counseling has been completed if it is not documented?3
Taken and read together as a whole, binding judicial precedent, departmental regulation and service-specific regulations establish and promulgate the Booker Rule and its applicability to evidence of prior SCM punishment. Prosecution Exhibit 1 did not comply with these evidentiary prerequisites. Aecordingly, under these authorities, despite the absence of defense objection, I would hold that the military judge erred in .admitting the exhibit.
The Judge Advocate Review
Congress requires a judge advocate review for every SCM (assuming a guilty finding) conducted in the armed services. Article 64(a), UCMJ. The President has, in turn, made such a review an evidentiary prerequisite to consideration of a SCM as a matter in aggravation. R.C.M. 1001(b)(3) reads as follows:
(3) Evidence of prior convictions of the accused.
(A) In general. The trial counsel may introduce evidence of military or civilian convictions of the accused. For purposes of this rule, there is a “conviction” in a court-martial case when a sentence has been adjudged.
(B) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible except that a conviction by summary court-martial ... may not be used for purposes of this rule until review has been completed pursuant to Article 6k-
(Emphasis added).
For purposes of analysis of the specified issue in this case, the language of this rule is noteworthy as much for what is missing as for what is present. R.C.M. 1001(b)(1) and (2) govern the admissibility of service data from the charge sheet, and personal data and character of prior service from the service record book, respectively, in aggravation. The last sentence in each paragraph is “Objections not asserted are waived.” Thus, the President has chosen to put the onus on the defense counsel to speak up if proffered evidence under these subsections is defective. Subsection (3), quoted above in pertinent part, has no similar language. Therefore, if the President believed that waiver should also be applied to the admissibility of a prior *681SCM, he would have reiterated that same language at the end of subsection (3). In sum, Article 64(a), UCMJ, and R.C.M. 1001(b) require the Government to present evidence of a judge advocate review before a military judge may admit evidence of an SCM.
Military Rule of Evidence 103
The majority relies principally upon the defense failure to object under Mil. R. Evid. 103(a)(1) in concluding that plain error did not occur in the admission of the SCM. For the following reasons, I respectfully disagree:
1. The plain language of R.C.M. 1001(b), as described above;
2. The rationale of our superior Court articulated in Booker, Mathews, and Mack, highlighting the singular importance of this particular evidentiary issue in deciding an appropriate sentence;
3. The plain language of Dyke emphasizing the role of the military judge as a gatekeeper, noting that the judge in that case “should have excluded ... [the defective NJP] on his own motion,” despite the applicability of Mil. R. Evid. 103(a)(1);
4. The plain language of JAG Manual § 0109.
The majority opinion also expresses concern about the potential for “sandbagging” by the trial defense counsel who identifies a deficiency in the Booker or Article 64, UCMJ, foundation for a prior NJP or SCM. While I would normally join in that concern and appropriate responsive action by this court, I fail to see how the Government would be “blind-sided” when the Government controls the production, retention and disposition of the documents in question. If the trial counsel becomes aware that the accused has a prior NJP or prior SCM, he can offer the evidence of that prior discipline, including appropriate Booker and/or Article 64, UCMJ, foundation. If the necessary foundation is missing, as an officer of the court who is first and foremost interested in seeing that justice is done, he would not offer any evidence of the prior discipline. If, on the other hand, the trial counsel offers only the evidence of the prior discipline without bothering to obtain the appropriate foundation, the Government should not be heard to complain of sandbagging.
In addition, I offer a few personal thoughts based on my experience as a trial judge. In the Department of the Navy, of all special and general courts-martial convened annually, the vast majority are special coruts-martial. See Annual Report of the Judge Advocate General of the Navy, October 1, 2000 to September 30, 2001, 56 M.J. CXVTI-III. Of those special courts-martial, the vast majority are bench trials that result in a bad-conduct discharge. Thus, most of the cases we review under Article 66, UCMJ are special courts-martial featuring the stigma of a punitive discharge.
As a former special court-martial judge, I can attest that the toughest decision I had to make was whether to adjudge a bad-conduct discharge, particularly in a close case. One of the more significant sentencing factors in such a case is the presence or absence of evidence of prior discipline. As such, that evidence often takes on added importance, and must therefore be completely reliable. In my opinion, for the reasons expressed previously, evidence of prior SCM punishment is not completely reliable if it does not comply with Booker and Article 64, UCMJ. If such is the case for the military judge trained in the law and experienced in the practical vagaries of the imposition of discipline in the field, it is even more true for non-lawyer members of a special court-martial who must decide whether to impose a punitive discharge. I believe that is another reason why the President, our superior Court, and the Judge Advocate General have taken this particular evidentiary issue out of the universe of all court-martial evidentiary issues and imposed standing orders for the military judge who has the gatekeeper watch, regardless of defense objection.
Prejudice
Under the circumstances of this case, I would find plain error resulting from the military judge’s erroneous decision to admit the prior SCM. United States v. Powell, 49 M.J. 460, 461-65 (1998); United States v. Fisher, 21 M.J. 327, 328 (C.M.A.1986). Not only is the error plain and obvious, it materi*682ally prejudiced a substantial right of the appellant, because there is an appreciable risk that the court gave considerable weight to the prior SCM in sentencing. See Kelly, 45 M.J. at 264; Dyke, 16 M.J. at 427. The risk arises from the following factors: (1) the SCM punished the appellant for, among other offenses, unauthorized absence, the same type offense as we have in this ease; (2) the trial counsel heavily emphasized that fact in his sentencing argument; and (3) the military judge then adjudged precisely the same sentence that the trial counsel requested. I am left with the impression that the military judge punished the appellant as much, or more, because he had been to a SCM previously, than for the instant offense.
Conclusion
I would reassess the sentence and affirm only so much extending to confinement for 60 days, forfeiture of $695.00 pay per month for two months, and a bad-conduct discharge.
Senior Judge. FINNIE joins in the opinion of Senior Judge PRICE.
. The Court of Military Appeals did not specify in its opinion whether it was a special or general court-martial.
. If my position in this dissent is ultimately adopted by our superior Court, I recommend that the appropriate authorities amend the JAG Manual and the IRAM to explicitly require documentation of Booker counseling in order to eliminate any doubt in this area.
. In a Navy and Marine Corps where units and individuals are constantly moving and transferring, we cannot, and need not, rely on live testimony from legal clerks and legal officers to document compliance.