(dissenting):
I dissent.
The possible disadvantages to the accused which are suggested in the principal opinion are more imaginary than real. First, I find no misunderstanding as to the nature of the charge. From the record, it clearly appears that the court, counsel, and the accused, understood its real character. Thus, in a lengthy statement in mitigation which reviewed the accused’s civil and military background, the defense counsel said:
“. . . The charge to which the accused has pleaded guilty today is one of absenting himself from proper place of duty. He is charged under Article 92. He pleaded guilty; he was in fact guilty as charged. It could have been proved anyway, so there is no sense in wasting your time. What it amounted to is that the accused did, as alleged, leave the company area to go to the club for a sandwich and a cup of coffee, came back and took a shower. After his shower he dressed up and reported to the guard house for duty, at which place he was apprehended and charged. This offense is properly charged and has been pleaded as such but it is not an offense which has aggravation.”
It is significant that while the trial counsel rebutted a number of the defense statements as set out in the mitigating statement, he did not deny the correctness of the defense counsel’s appraisal of the charge. Neither was it disputed by the president of the court as the presiding officer.
Second, it does not appear that any of the parties misunderstood the extent of the punishment that could be imposed upon the accused. Since the case was before a special court it is obvious that the maximum confinement could not be two years as intimated in the principal opinion. It is also clear that the accused believed that his greatest disadvantage lay, not in the offense charged, but in the fact that he had four previous convictions. These were introduced in evidence. One was for sleeping on post and the other three were for failing to obey a lawful order.' Arguing against the effect of these convictions, the defense counsel said:
“Every time the accused breathed in the wrong side of nostrils [sic] he was struck, hit, and put in front of a court-martial. No place in the defense counsel’s investigation has there been evidence of a concrete attempt to rehabilitate this man.”
It is noteworthy that the court adjudged a sentence which included confinement for only three months — a period which is authorized as additional punishment on evidence of two or more previous convictions. Manual for Courts-Martial, United States, 1951, paragraph 127c, section 8, page 228, as amended by Executive Order 10565, 19 FR 6299 (1954). Consequently, I find no evidence to support the conclusion that the accused was prejudiced by the appointment of an enlisted person as his counsel in a special court-martial trial. United States v. Goodson, 1 USCMA 298, 3 CMR 32. I would affirm the decision of the board of review.