(dissenting):
I dissent.
This case involves previous convictions of a nature similar to those charged in the present specifications, and it is argued the evidence influenced the court-martial to find that the accused committed these offenses because he has a disposition to disobey orders and use obscene language. For my purposes I concede that error was committed, but I reject the argument on prejudice for reasons which will be hereinafter set forth.
My associates say “error without prejudice is no ground for reversal.” That is just a rephrasing of Article 59(6) of the Code, 50 USC § 646, and I believe it announces a principle which requires a result contrary to the one ordered. I need not give consideration to any impact on the sentence imposed, as the extract copies of the service record showing the prior convictions were properly introduced after findings, and the court-martial was at liberty to consider them in assessing punishment. The prejudicial effect of the evidence, therefore, must be limited to its effect on the findings.
In a disputed factual case, or when the evidence of the Government fails to compel a finding of guilt, or where the truthfulness or veracity of an accused on a given specification must be assessed, incompetent evidence placed before the court-martial for the purpose of diminishing his worthiness of belief would require reversal. But here we are not faced with any of those possibilities. The conviction on one specification alleging failure to obey was disapproved, and the evidence of guilt on the other charging disrespect is simply overwhelming. There is no dispute in the facts on the latter offense, as the accused elected to testify on one charge, but chose not to contest the evidence on the one with which we are concerned. He in no way pitted his credibility against the worthiness of belief of the Government’s witnesses, and so the court was not required to determine which of two conflicting stories was furnished by the more trustworthy witness.
The principal witness against the accused was Master Sergeant Anderson, the person toward whom the disrespectful language was directed. According to the sergeant, the accused was two to four feet away from, and face to face with, him at the time the odious language was used. There is no merit to any contention that Anderson could have misunderstood either the words used or the manner in which they were spoken. Furthermore, it is a fair inference that the accused was motivated by some feelings of hostility toward the sergeant. He corroborates the testimony that he appeared out of uniform; *706that he was challenged by the sergeant who he claims used the following language — “Wait a minute, boy, what do you have under your jacket?”; and that he believed he could enter the mess hall in a mixed uniform. Moreover, when he was directed to change into proper garb, he failed to do so. Instead, he attempted to gain entrance to the mess hall on the second occasion by concealing the fact that he was not correctly attired. When the sergeant stopped him for a second time, he became belligerent and the foul and obscene language was uttered so that it could be heard by Airman First Class Haller. The latter testified to the precise language which he heard the accused use, and I find it more than coincidental that he recounted much of the exact verbiage testified to by the sergeant. Airman Haller was not more than four or five feet away from the parties at the time this incident occurred, and although the majority seems to suggest otherwise, Haller testified that there was not a lot of noise in the mess hall. Even had there been, he established without any doubt that the exchange of words was in a tone loud enough to be heard by him.
The holding of the court is inexplicable to me for the obvious reason that a mass of incriminating evidence is not weakened by the presence of one iota of countervailing testimony. In addition, it is not undercut by inconsistencies or uncertainties or by casting doubt on its source. Here, not only is the record barren of testimony to meet the prosecution’s case, but defense counsel is unable to point to any inconsistencies, uncertainties, or improbabilities in the testimony of either Anderson or Haller, or to suggest any reason why they would be prejudiced or biased against the accused. No motivation for falsification or distortion of the truth by these two witnesses may be found within this record of trial. Neither had known the accused before the difficulty arose, and Haller particularly had no interest in the outcome.
In reaching my conclusion, I have not overlooked the possible contention that this incompetent evidence of previous convictions might undermine the presumption of innocence. This is, in my opinion, the only possible ground upon which the majority opinion might rest. But here the facts are so overwhelmingly against the accused that that idea is whimsical. What dissipated the presumption in this case was the clear, direct, and positive testimony of the Government witnesses, unchallenged by facts, fancy, or inferences. To take a contrary view, one would be required to believe that the incompetent evidence, in some degree, influenced the court-martial to find against the accused. To test that possibility, I ask, could any reasonable person have reached a finding other than guilt in the absence of the error found here by the majority? My negative answer requires me to affirm the decision of the board of review.