(dissenting):
I dissent.
This is a special court-martial case tried subsequent to our decision in United States v Turner, 9 USCMA 124, 25 CMR 386. There we said:
. . [I]n order that there be no misunderstanding as to the future, we now hold that the law officer of a general court-martial and the president of a special court-martial must advise the members in open court on the maximum permissible limits of punishment prior to deliberation on the sentence. Only in this manner can we satisfy ourselves that the sentence adjudged hy a court has been based upon correct limitations.” [Emphasis supplied.]
In the instant case the accused pleaded guilty to dereliction of duty, assault, and being drunk and disorderly, in violation of Articles 92, 128 and 134, Uniform Code of Military Justice, 10 USC §§ 892, 928 and 934, respectively. He was sentenced by the special court-martial to a bad-conduct discharge, forfeiture of $35.00 per month for six months, and confinement at hard labor for six months. The president gave no instructions on the maximum sentence.
The Government argues that, even though the failure to instruct on the maximum sentence is error, this accused was not prejudiced because the court-martial must be presumed to know its maximum jurisdictional limits and since the maximum permissible punishment here would otherwise have exceeded those limits, its jurisdictional maximum is the maximum that may be imposed. I am unwilling to presume that the members of a court-martial know the law. See United States v Clay, 1 USCMA 74, 1 CMR 74, and United States v Keith, 1 USCMA 442, 4 CMR 34. It is the duty of the law officer of a general court-martial and the president of a special court-martial to properly advise them on the law. Where, as here, he fails to do so, there is a fair chance that any understanding of the law the court members may have had might not be a correct one. I am unwilling to sanction any view which would have the effect of dispensing with the required instructions on maximum sentence in special court-martial cases where the maximum sentence, as set forth in the Table of Maximum Punishments (paragraph 127 c, Manual for Courts-Martial, United States, 1951), exceeds the jurisdictional limits of the special court-martial. This Court has no way of knowing what sentence would have been imposed had the court-martial received proper instructions on the sentence. We do not know whether the members of the court-martial adjudged what they did because they were aware of their jurisdictional maximum and knew that the maximum permissible punishment exceeded such limits, or whether they simply considered the sentence adjudged to be an appropriate one. We have no *74way of knowing whether they believed each offense carried, for example, a five-year penalty and were being lenient with the accused, or whether advice as to the proper maximum would have caused them to impose a sentence less than their jurisdictional maximum.
Where dealing with such important rights of an accused, I prefer not to enter the realm of conjecture and speculation. Further, the- great need for certainty and definiteness in the criminal law convinces me that when this Court has established a rule which is definite and workable, we should not whittle it away and make it indefinite and uncertain and thereby render it difficult or impossible for those who must work with the rule to understand and properly apply it.
I would find prejudice and return the record for reassessment of sentence by a board of review.