(dissenting):
I dissent.
This was a special court-martial ease, and the staff judge advocate’s review is comprehensive and complete. As stated in the Court’s opinion, there are some evaluations by officers who were familiar with the character of accused’s service that are not flattering. Generally, they are opinions founded on his service behavior, and I doubt that they are subj'ect to question. Four of the offenses referred to by them were admitted in evidence before sentence, and those adequately support their conclusion that the accused’s retention in the service was not advisable. The other details are largely confined to traits which would be reflected by the nature of the offense committed by him. However, for my purposes, I need not dwell on that subj'ect, for I do not believe he is entitled to relief at this level. In United States v Lanford, 6 USCMA 371, 20 CMR 87, we specifically held that an accused could meet this kind of an issue at the board of review level if he felt aggrieved by reviewing authorities using information which was not reflected in the transcript of trial. Here, accused was represented by qualified counsel before the board of review who specifically assigned as error the comments of the staff j'udge advocate but, significantly enough, neither the accused nor his counsel even suggested that they cared to offer any information in opposition to the comments of the evaluating officers. Counsel cannot plead ignorance of our holding in Lanford, for his brief before the board was signed on September 4, 1957, and Lanford was decided some two years prior thereto. Furthermore, in his brief filed with us, the accused does not contend that there is one item mentioned which he can or desires to dispute. He relies on the bare assertion that he was not given an opportunity to challenge the comments prior to the time the convening authority reviewed the record. My answer to that is that he had an opportunity to do so at the board level but, for reasons best known to him, he failed to avail himself of that chance.
It may well be that in some cases an accused might be prejudiced by not having been given an opportunity to have a convening authority consider his refutation of derogatory matters. But this is not a case which falls in that category for at least four reasons. First, any derogatory information in the review is limited to accused’s military record, and he would know that any reviewing authority passing on his sentence would give consideration to his military standing and character. Second, sufficient evidence is in the transcript of the trial to show the improbability of the accused receiving a suspension of his punitive discharge or a reduction of his confinement. Third, the conduct mentioned by the evaluating officer is founded on accused’s performance of military duties, Article 15 punishments, and previous convictions with which he would be all too familiar, and service of the report on him would be a mere formality. Fourth, most, if not all, of the deterimental information was discussed with the accused, and he was afforded an opportunity to admit, deny, or explain his misbehavior.
When I find those conditions in a record and when I further find that an accused fails to make timely use of a forum which has the power and duty to give him relief, I conclude he has had his day on review.
I would affirm the decision of the board of review.