(concurring in part and dissenting in part) :
I dissent as to the disposition of the first assignment of error. As the principal opinion notes, the particular instruction given was held to be erroneous in the Varnadore and Holt cases, *1229 USCMA 471, 26 CMR 251, and 9 USCMA 476, 26 CMR 256, respectively. I do not believe we may correctly hold that what we as judges might say is a light sentence may reach back in time to cure this erroneous instruction. The convening authority obviously did not regard this as a light sentence inasmuch as he reduced the period of confinement from five years to three, and the board of review further reduced it to eighteen months. Yet this Court, which is not possessed of the jurisdiction to pass on the severity of sentence, now states that the accused was not affected by this error. Had a correct instruction been given, there is no way of ascertaining what sentence the court-martial might have adjudged. I believe the decisions in the Varnadore and Holt cases, both supra, are correct in law and should not now be altered by this opinion. If we are to predicate our reviews upon an ad hoc basis, lower military tribunals will be deprived of the guideposts which it is our function to furnish to them.
Since the board of review purged any improper considerations the law officer may have injected into his instruction by independently assessing and reducing the sentence, I concur with the majority opinion as to the disposition of the second assignment of error.