Opinion of the Court
HomeR FeRGüson, Judge:Appellant was found guilty in accordance with his plea of two specifications of absence without leave and one specification alleging failure to obey a lawful order, in violation of Articles 86 and 92, Uniform Code of Military Justice, 10 USC §§ 886, 892, respectively. No evidence was presented on the merits. After the court had announced its findings, the president of the special court advised trial counsel that he could read the data shown upon the charge sheet and present evidence of previous convictions if any such evidence existed. After reading the charge sheet, trial counsel was sworn as a witness and testified, as custodian of the accused’s service record, concerning one previous conviction. The president then explained to the accused his rights in extenuation and mitigation, which included an explanation that the prosecution could “offer evidence to re*605but anything contained in the statement,” which statement could be made by the accused or his counsel, could be oral or in writing, or could be sworn or unsworn. The accused elected to have his counsel make a statement in his behalf. For the sake of completeness, the statement is quoted in its entirety:
“While interviewing Private Anderson, Staff-Sergeant Mclntrye, the brig warden at Parris Island, came to me and stated that he thinks the accused is good Marine Corps material and that he did excellent work while in the brig at Parris Island. We have had letters from Anderson’s mother. She said Anderson had some problem, she doesn’t know what it is. She said he has been increasingly nervous in the past few weeks. She requested that a doctor give him an examination. While Anderson was a prisoner in Atlanta, there was a break-out in the brig in Atlanta in which three people left. Anderson had an opportunity to leave at that time but he stayed because he wanted to come back and stand trial for the offense he had committed. He did not realize the seriousness of the offense and now he can understand the seriousness of what he has done. If given another opportunity, Private Anderson will do everything in his power to become a valuable asset to the Marine Corps. Staff Sergeant Mclntrye stated to me that he thought he could be valuable to the Marine Corps.”
The president then inquired of trial counsel whether he had anything further to say and trial counsel made the following statement to the court:
“In closing, I would like to point out that the accused was transferred to this station and was UA upon arrival at this base. He was given summary courts-martial and confined to the brig at Parris Island. The sentence was reduced 23 December 1955 and the accused was granted liberty. The Officer of the Day and the Duty Sergeant explained the seriousness of unauthorized absence and advised him to get back on time after Christmas week-end. He did not return from this liberty. Anderson was apprehended and confined at Atlanta and a guard was sent to bring him back. He was again confined to wait trial. Anderson was examined by a doctor. The doctor states he knows right from wrong and is able to adhere to the right and participate in his own defense.”
The court then closed to deliberate on sentence and upon reopening some twenty minutes later announced a sentence which included bad-conduct discharge, partial forfeitures for four months, and confinement at hard labor for a like period. The board of review affirmed the findings and sentence without opinion.
The accused urges upon us a claim of prejudice by reason of the unsworn testimony of trial counsel which he contends focused the court’s attention upon aggravating circumstances not in evidence. He argues that paragraph 75, Manual for Courts-Martial, United States, 1951, affirmatively requires the prosecution to adduce evidence to rebut anything contained in the sworn or unsworn statement of an accused offered in evidence and that an unsworn statement which introduces aggravating circumstances is not permissible. United States v Carter, 1 USCMA 108, 2 CMR 14. The Government responds with the observation that the trial counsel had been sworn as a witness for the purpose of introducing evidence of previous convictions and that his closing statement was merely factual testimony given under oath. United States v Lowery, 2 USCMA 315, 8 CMR 115. Furthermore, it is contended that matters contained in the closing statement were merely cumulative of matters already before the court and found either in the specifications to which the accused had pleaded guilty or in the evidence of previous convictions.
We believe the trial counsel’s statement exceeded the proper bounds of argument. Although it is conceded that portions of his statement could be traced directly to evidence properly before the court, there were other *606portions which represent unsworn testimony concerning new matter not in evidence. While it is true that trial counsel can make a separate argument on the appropriateness of sentence, such argument “must be based upon the evidence adduced at the trial, and it cannot ‘go beyond the bounds of fair argument.’ ” United States v Olson, 7 USCMA 242, 22 CMR 32. The reasonable inference which can be adduced from trial counsel’s statement was that the accused was completely unworthy of any further rehabilitative efforts because he had failed to heed the disciplinary admonishments and advice given him regarding the seriousness of his prior conviction of the same offense for which he was then being tried. The court-martial might well have concluded that the accused having once been guilty of a breach of faith would do so again were the opportunity to present itself. Additionally, the trial counsel’s remarks concerning the accused’s psychiatric examination were hearsay pure and simple and were obviously an attempt to rebut defense counsel’s remarks regarding the accused’s “nervous” condition. Furthermore, we believe that trial counsel had been relieved of his oath when he argued to the court on the sentence. Cf. United States v Lowery, supra. The matter contained in his statement could properly have been brought to the court’s attention by merely calling the witnesses themselves to testify.
Although defense counsel voiced no objection to the trial counsel’s statement, we are not inclined to apply the doctrine of waiver in special court-martial cases such as the present where counsel are nonlawyers and obviously not trained to either recognize the error involved or intelligently waive its harmful effects. United States v Kelly, 7 USCMA 584, 23 CMR 48. In view of the conclusion we reach, reversal is required. The error, however, extends only to the sentencing phase of the trial and corrective action may be accomplished by returning the case to the level of the proceedings where the error occurred to permit the court-martial to reconsider the sentence. The findings of guilt are hereby affirmed. The sentence is set aside and a rehearing on the sentence is ordered.
Chief Judge Quinn concurs.