(concurring in part and dissenting in part):
I concur with the principal opinion’s disposition of the first issue.
However, I dissent on the disposition of the second issue. As the majority opinion notes, the law of-ficer’s instructions, were erroneous. However, it finds no prejudice because of the leniency of the sentence. It concludes:
“There is no real value in reciting generalities to courts-martial. They should operate on facts, and instructions should be tailored to fit the particular record. Obviously, the difficulty with these instructions is that they pose theories which are not supported by testimony and which operate as a one-way street against the accused. They have an overtone of severity against him which he can*109not possibly rebut by any reasonable means.”
I stated my view in United States v Horowitz, 10 USCMA 120, 27 CMR 194, that this Court may not properly hold that what we say as judges is a light sentence may reach back in time to cure an erroneous instruction. I also said in the same case, “Had a correct instruction been given, there is no way of ascertaining what sentence the court-marital might have adjudged.”
I also dissent as to the disposition of the third issue. The pertinent portion of the staff legal officer’s review is as follows:
“9. RECOMMENDED ACTION: Mamaluy, the accused in this case, was one of six aecuseds [sic] tried in companion cases, the other ac-euseds being Harry B. O’Neal, Donald H. Earnest, Michael J. Pearce, Elmer A. Rolof, and Ronald E. Smith. A reading of these cases together with their allied papers, indicates that the accused Mamaluy was the instigator and ringleader of this group. For this reason, coupled with the seriousness of the offenses involved, it is recommended that the sentence adjudged by the court be approved.” [Emphasis supplied.]
Obviously, the staff legal officer’s conclusion that the accused was the ringleader was not gleaned from an examination of the record in this case alone. We have frequently held it constitutes prejudicial error for the staff legal officer to include in his review and/or the convening authority to consider matters from outside the record adverse to the accused without affording him an opportunity to rebut or explain such matters. See United States v Griffin, 8 USCMA 206, 24 CMR 16; United States v Vara, 8 USCMA 651, 25 CMR 155; United States v Wilson, 9 USCMA 223, 26 CM.R 8; United States v Morris, 9 USCMA 368, 26 CMR 148.