(dissenting):
I deeply regret that my brothers attach such slight significance to the honorable characterization of a period of military service. In my opinion, the Court’s holding today has the effect of reducing the value of an honorable discharge certificate to the price of the paper upon which it is printed. I had always believed that the issuance of an honorable discharge certificate to a member of the military service was a glowing testimonial that the recipient was a person of good moral character who had served his country well and faithfully. Perhaps I was mistaken, but, if so, I find some consolation in knowing that I am in the excellent company of others who share my mistaken belief.
The Congress of the United States has consistently recognized the importance of honorable military service by bestowing valuable rights and privileges upon those who have received honorable discharges. Just recently, the Supreme Court of the United States held the issuance by the Secretary of the Army *283of a discharge certificate in form other than honorable, when the petitioner was entitled under pertinent Army regulations to an honorable discharge, resulted in “judicially cognizable injuries.” Harmon v Brucker, 355 US 579, 78 S Ct 433, 2 L ed 2d 503. The framers of the Manual for Courts-Martial, United States, 1951, understood the import of an honorable discharge by providing that an accused in order to show the probability of his innocence could “introduce evidence of his own good character, including evidence of his military record and standing.” Paragraph 138f(2) of the Manual, supra. See also United States v Gagnon, 5 USCMA 619, 18 CMR 243. Profesor Wigmore, in his monumental work on the law of evidence, had this to say concerning the use of an honorable discharge to show good character:
“A certificate of honorable discharge from the United States Army or Navy, assuming it to be admissible by exception to the hearsay rule (post, § 1675a), should be liberally construed, i. e. as importing not merely general good character, or the specific traits mentioned, but any other of the fundamental moral traits that may be relevant in criminal cases. The soldier is in an environment where all weaknesses or excesses have an opportunity to betray themselves. He is carefully observed by his superiors, — more carefully than falls to the lot of any member of the ordinary civil community; and all his delinquencies and merits are recorded systematically from time to time on his ‘service record’, which follows him throughout his army career and serves as the basis for the terms of his final discharge. The certificate of discharge, therefore, is virtually a summary of his entire service conduct, both as a man and as a soldier. When it is ‘honorable’ in its import, it implies a career successfully negativing all of the more common traits involved in criminal charges. In this respect it is therefore more comprehensive than the ordinary community-repute (post, § 1608) to general good character, and is entitled to be used on behalf of an accused on virtually any specific charge of serious crime. In view of the high moral value attached to an honoi*able discharge in the military community, and of the vast numbers of men who saw service in the World-War, it is fitting that the evidential import of such certificates should be liberally recognized.” [Wigmore, Evidence, 3d ed, § 59.]
It is indeed unfortunate that this Court concludes that there was “no foundation in the evidence” to support the request for instruction on good character.
I believe that evidence of honorable discharge can always raise the issue of good character so as to require instructions. The facts in the instant case would certainly present no exception. Here, the accused had pleaded not guilty to the offenses charged and vigorously maintained his innocence. The strength of the Government’s case rested largely upon the testimony of one Gunn, an admitted “heavy user” of marihuana and heroin, whose testimony was- obtained at the price of a letter of immunity relieving him from criminal prosecution for narcotics violations. The witness willingly acknowledged that he disliked the accused because the latter at one time damaged his car. In addition, it was shown that the witness had previously been court-martialed for the theft and the subsequent sale of identification cards.
Taking the stand in his own defense, the accused denied the possession and use of the marijuana within the period covered by the specifications. He testified that he had served in the United States Army for four years during which time he had seen considerable combat duty in Korea. He was awarded an honorable discharge at the termination of his Army service and subsequently had enlisted in the Marine Corps. When the law officer inquired of counsel regarding instructions, defense counsel specifically requested an instruction on good character based upon the accused’s receipt of an honorable discharge. Without any apparent reason, the law officer summarily rejected the request.
*284Aside from my beliefs concerning the efficacy of an honorable discharge, there are additional reasons why I consider the majority’s opinion incorrect. Here, defense counsel specifically requested the instruction. It would have imposed but a slight burden on the law officer to give the instruction, yet it might well have been of incalculable benefit to the accused. United States v Offley, 3 USCMA 276, 12 CMR 32. Under the circumstances, I consider it an abuse of discretion on the part of the law officer to arbitrarily refuse to give the instruction.
Another defect contained in the principal opinion is the implication that evidence of bad character cancels out and nullifies evidence of good character so as to eliminate the necessity of an instruction on that issue. I had always believed that where evidence was in conflict it became a question of fact to be determined by the court-martial under proper instructions. Admittedly, there was damaging evidence regarding the accused’s character, but, on the other hand, there was very favorable evidence of his good character attested to by the fact that he had received an honorable discharge. The weight to be accorded this evidence was exclusively a matter within the court-martial’s discretion. Here, the law officer usurped the functions of the finders of fact by refusing to submit the issue as requested.
Although I content myself with filing this dissent, I can only hope in the words of Mr. Justice Frankfurter “that the present decision will turn out to be an isolated deviation from the strong current of precedents — a derelict on the waters of the law.” Lambert v California, 355 US 225, 78 S Ct 240, 2 L ed 2d 228 (dissenting opinion).