(dissenting):
I dissent.
Unlike by brothers, I cannot determine whether the board of review purged the error by reassessing the sentence because I have been unable to first satisfy myself that the board of review even appreciated the error. Four errors were originally assigned on behalf of the accused before the board of review. The first three assigned errors attacked the accused’s conviction on specifications 3 and 4 of Charge I on cumulative grounds, and the remaining claim of error challenged the correctness of the law officer’s instruction on the maximum imposable sentence. In its written opinion, the board only discussed the errors relating to specifications 3 and 4 of Charge I. After setting aside the findings of guilt of these two specifica*104tions for insufficiency, the board found “the remaining approved findings of guilty and the sentence correct in law and fact” and reassessed the sentence on the basis of the entire record.
The majority of this Court reason that:
“In the case at bar, we are certain that the members of the board of review were cognizant of the error made by the law officer. The matter was specifically called to its attention by the brief of appellate defense counsel and the Government, in answer to the assignment of error, conceded arguendo that accused’s position was well taken. Certainly, we must assume that a board of review is advised of the errors raised in the briefs and argued by counsel.”
In my view the mere fact that a board has been “advised of the errors raised in the briefs” is not the same as saying that a board has appreciated the validity of an assigned error and has acted to cure its prejudicial effects. I recognize that a board of review can purge the type of error here involved by reassessment of the sentence; however, I cannot assume that they have done their duty when their own opinion is silent on the matter. Furthermore, the fact that the board of review’s opinion — dismissing specifications 3 and 4 of Charge I — disposed of three of the four errors assigned by counsel leads me to believe that the board was unimpressed by the remaining error concerning the law officer’s erroneous instruction on the maximum sentence.
The Court’s reliance on United States v Crusoe, 3 USCMA 793,14 CMR 211, is misplaced because in that case the staff judge advocate, in the portion of his review dealing with the sentence, correctly indicated the authorized maximum. Furthermore, in the later part of his review, the staff judge advocate independently assessed the appropriateness of the sentence. Under these circumstances, the Court concluded that the staff judge advocate had effectively purged the law officer’s error. In the course of its opinion, this Court said:
“Of course, the record of trial considered by the board of review contained the extensive review of the convening authority’s staff judge advocate. Despite the board’s failure to render a long-form opinion, we are sure that its members were cognizant of the content of this field review. Therefore, we must conclude that they too passed on the question of appropriateness of sentence — and with no sort of misconception that the accused had been convicted of offenses whose maximum punishment aggregated fifteen rather than only ten years. Thus all doubt is removed that the question of sentence adequacy was passed on by agencies with power— wholly wanting in this Court — to determine appropriateness in this area.”
The instant case, however, is clearly distinguishable from the Crusoe case, supra. Here the staff judge advocate in his review not only failed to purge the law officer’s instructional error, but in fact compounded it, by advising the convening authority that the maximum permissible sentence was the same as had been instructed upon by the law officer.
It would have been a simple matter for the board to have referred to the error in the course of its opinion. In that way this Court would not of necessity now be forced to grope blindly in the dark in an effort to determine whether the error was considered and the sentence reassessed on that basis. All genuine doubts in this area must be resolved in favor of the accused. I would reverse and return the record to the board of review to permit a reassessment of the sentence in view of the erroneous instruction. United States v Cooper, 2 USCMA 333, 8 CMR 133.