(concurring):
I concur.
As the Chief Judge points out, execution of accused's bad-conduct discharge at his own behest prior to the expiration of the thirty-day period for filing a petition with this Court cannot operate to his detriment. Further, while I agree with the views announced in the principal opinion, I wish to add that implicit in our decision in United States v Doherty, 10 USCMA 453, 28 CMR 19, is the answer to the instant question. There the service, at accused’s own request, accelerated the execution of his punitive discharge, but thereafter accused decided to petition this Court for review. See United States v Ponds, 1 USCMA 385, 3 CMR 119. We commented that during the pendency of his appeal, “characterization of the nature of . . . [accused’s] discharge as ‘dishonorable’,” was improper. As I analyze the legal proposition, Article 71(c) of the Code, 10 USC § 871, only bars execution of the sentence if a case is reviewed by us. Based on an accused’s request which indicates no appeal will be taken, execution may issue. When he changes his mind and petitions this Court within time, he in effect seeks to set aside the findings and sentence and execution of the latter. If his appeal is successful, execution of the sentence is recalled, and he may be restored to duty pending further action. If he fails and the sentence is affirmed, the form of the discharge is finalized. However, during the pendency of the appeal in this Court, consideration of the discharge as being punitive is improper. That principle was implicit in United States v Doherty, supra, for it is to be noted that the board of review in that case affirmed a sentence including dishonorable discharge, and we affirmed the board’s decision. Manifestly, then, since there are no errors appearing in the record of this case which are materially prejudicial to accused’s substantial rights, it follows that affirmance of the decision of the board of review is in order.