(dissenting):
I dissent.
The majority concedes error in the law officer’s instruction on the sentence that could lawfully be im- posed on Charge I. However, it attempts to minimize the error by referring to the punishment that the court could have imposed under Charges II and III. Such reference invites speculation only. If we are to guess at the reasoning used by the court in reaching its final sentence, we can just as easily and logically assume that the court decided to adjudge dismissal because of Charge I, and that it imposed forfeitures only on the basis of the remaining charges because it thought that forfeitures were a necessary concomitant of dismissal. Force is given to this assumption by the singular fact that no confinement was imposed, although the findings of guilty on Charges II and III would support a total of eight years’ confinement. Since this theory is entirely reasonable, the accused should not be required to prove “through exploration of the member’s mental processes, that . . . [the error] did in fact influence them.” United States v. Yerger, 1 USCMA 288, 290, 8 CMR 22, 24. Accordingly, there was at least a fair risk of prejudice in the law officer’s instructions on the sentence and, therefore, we should reverse the findings of the board of review.
I further disagree with the majority in its casual treatment of the failure of the convening authority to state his reasons for taking action different from that recommended by his staff judge advocate. It seems to me that the Manual’s requirement that the convening authority state his reasons in writing when he disagrees with the recommendations of his staff judge advocate, is an integral part of the effort to overcome arbitrary and capricious action by a commanding officer. True, the convening authority’s failure to adhere to the provisions of the Manual may not be the kind of omission that will provide a basis for reversal by this Court, but we should not place our stamp of approval on his dereliction.