(dissenting):
I dissent.
I
In my dissenting opinion in United States v Dean, 7 USCMA 721, 23 CMR 185, I set forth my view that the sentence which may be imposed on rehearing is limited only by that originally adjudged by the court-martial. Necessarily then, I must disagree with the Court’s opinion in the ease at bar, for the majority extends the holding of that case, where we were concerned with the limitation on the second convening authority, and now rules that the maximum sentence imposable by the trial forum at a rehearing is the lowest quantum of punishment approved at any level prior to the second trial. In Dean the conclusion reached by the majority was predicated on the rule that the construction of a statute was aided by prior administrative interpretation. Certainly as to the principle here announced by my associates, I encounter great difficulty in applying that canon of statutory construction for there is no prior authority to support, changing the phrase “original sentence” found in the statute to mean sentence affirmed by a board of review.
II
For a second point of departure, I take issue with my associates’ caveat that “it should not be mentioned [to the court-martial] that the penalty was reduced on review.” Even appellate defense counsel concede that in United States v Kelly, 5 USCMA 259, 17 CMR 259, we approved paragraph 81 d of the Manual, stating:
. . At a rehearing, trial counsel should advise the court of the original sentence, and invite its a't-tention to ‘any pertinent limitations upon its discretion in adjudging a new sentence.’ Manual for Courts-Martial, supra, paragraph 81 d, page 132.”
And contrary to my brothers’ caveat, the defense contends, to quote from their brief, “that the action of the convening authority in reducing the confinement at hard labor . . . should be considered as a ‘pertinent limitation’.”
Apparently my associates believe that the Manual rule quoted above must be disregarded and that a court-martial may only be informed of the maximum sentence it may impose and not the basis for such limitation. I respectfully disagree. While- the rights of an accused must be protected, he should not be given the benefit of a sentence yardstick weighted in his favor and one entirely disproportionate to the gravity of his offense. A maximum sentence is reserved for the most aggravated form of the crime, and if a lower limitation is created by a reduction on appeal and the court-martial is not apprised of that fact, the offender will no doubt reap the benefit of duplicated clemency factors. Those who have the duty of assessing punishment must consider the appropriateness of sentence in the light of the crime, the offender, and the limits imposed by the statute. Therefore, unless they are informed that the maximum sentence permitted by the Table of Maximum Punishments has been lessened by some reviewing authority, they deliberate not .with the proper maximum permissible sentence imposable for the crime but one which has been reduced by the application of clemency factors which the court does not know have been considered. In the instant proceedings, there is no question about accused’s guilt — the only problem which concerned the court was the assessment of an appropriate sentence not to exceed the .punishment originally imposed by the first court-martial. And I believe the law officer reasoned correctly when he concluded that the sentence should be assessed by :a court-martial fully informed on all aspects ‘of the sentence. Certainly a court-martial *535should not be forced to work under a misapprehension or in a vacuum, and it ought to be informed as to the maximum sentence authorized for the offenses committed and any limitations thereon. To keep it ignorant of that information will increase the probability that punishment will be imposed under the mistaken belief that a much reduced penalty — and one reached after mitigating, clemency, and other factors have been injected — is the legal maximum set by the President. Surely good administration cannot be expected if the true facts necessary to fairly assess a sentence are concealed from the court.
Proceeding in the fashion I suggest presents no danger of unfairness to an accused, for as we indicated in Kelly, supra, the court members must also be advised that they may not exceed the punishment originally imposed. Nor is there any fair risk that the court-martial members would feel bound to duplicate the previous sentence, for they are, of course, unfettered and are required, as the instant court members were charged, to adjudge such sentence as they consider appropriate.
Ill
Further, I must dissociate myself from any intimation that the board of review in the instant case “assiduously sought to avoid the effect of our prior decisions.” As I read the opinion, the board was trying honestly to reconcile various holdings of this Court, numerous Federal cases, and the pertinent codal and Manual provisions. I believe that to be the proper approach to a legal proposition. Moreover, the criticism is unnecessary, for even assuming the board was incorrect in law, it purged any error in that regard of all possible prejudice. I quote the board’s language:
. . Even if we should assume arguendo that the law officer was in error in stating the maximum punishment authorized by the Table of Maximum Punishments and in failing to advise the court with respect to a maximum sentence based upon mitigating action previously taken by the convening authority, there still would be no prejudice to the accused in this case which would require this Board of Review to reverse. The convening authority, as we have indicated, took corrective action as he was required to do before forwarding the case to us and we deem the approved sentence to be entirely appropriate.”
We have held on numerous occasions that when an error has been recognized and the sentence reassessed in light of the error, prejudice has been removed and no further action is required. United States v Crusoe, 3 USCMA 793, 14 CMR 211; United States v Reiner, 8 USCMA 101, 23 CMR 325; United States v Peters, 8 USCMA 520, 25 CMR 24. See also United States v Reid, 10 USCMA 71, 27 CMR 145. Manifestly, by its alternative approach, the board of review purged any possible harm to this accused.
IV
Finally, still another reason compels me to dissent from reversal of the instant case. Subsequent to oral argument in this appeal, accused, through his counsel, moved to withdraw his petition. In his statements in support of his motion, accused indicated he had received legal counselling and fully understood the consequences of his action, but nonetheless desired to withdraw his petition. Further he stated:
“. . . I have now served the greatest part of my sentence and I do not want to go back to duty. My only desire is to return to my home upon release from confinement.
“I do not care about the back pay I might receive of [sic] the change of discharge if we were successful on appeal. I feel I have served my time and would now like to return home and forget as quickly as possible about the whole thing.”
and
. . it is my desire to withdraw my petition because I do not want a rehearing or new trial and I do not want to return to duty even if I were granted a rehearing or a new trml or if the charges in my case were dismissed.”
*536Aside from his desire to withdraw his appeal, it might be of interest to point out that accused was under sentence to a bad-conduct discharge as the result of a prior conviction at the time the instant offenses were committed. It is a virtual certainty he will be separated with a punitive discharge, and he has already served almost all his confinement on the present charge. Thus, as a practical matter, pretermitting forfeitures, any sentence that can be adjudged at a rehearing will already have been satisfied. The consequence of my brothers’ disposition is to give this man the benefit of a reversal which he himself protests.
I would affirm the decision of the board of review.