(concurring in the result) :
I concur in the result.
My views on certain aspects of this subject may be found in my dissenting opinions in United States v Dean, 7 USCMA 721, 23 CMR 185, and United States v Jones, 10 USCMA 532, 28 CMR 98. See also my separate opinion in United States v Skelton, 10 USCMA 622, 28 CMR 188. Here, however, my associates extend the rules therein announced, for this law officer instructed the court-martial in the language of the statute and he gave the correct maximum sentence. See Article 63(b), Uniform Code of Military Justice, 10 USC § 863. We are thus confronted with a situation where a majority of the Court hold it is error for a law officer to give a court-martial statutory guideposts to aid it in an area of responsibility. That is a questionable principle, and it will result in court-martial members wondering about the vagaries of a system which permits a maximum sentence for the same offenses to fluctuate from twenty-five *68years to five years within a few days’ period. The only purpose I can see in keeping the court ignorant of the true facts is that on the rehearing it might be inclined to reassess the same sentence as meted out by the first court. Even if that eventuality occurred, the yardstick would not be inappropriate. But if the second court is not informed as to the reason for the reduction, the members will either be misled as to the true maximum or they will speculate as to the cause and they may be more apt to use the announced maximum as the appropriate sentence, for they might believe the reduction was ordered by higher reviewing authorities. Certainly, I much prefer an informed court for it is seldom, if ever, that justice flows from ignorance and if a court is properly instructed that, regardless of prior sentences, it must independently arrive at an appropriate sentence, unfairness is not likely to result. To be sure, the accused will lose the possibility that the court might be misled into believing the sentence limit set by the law officer is for the most aggravated form of the crime when it is not. But that is not a right or privilege that should be accorded one convicted of a crime. He is not entitled to a loaded instruction and, in fairness to the Government, the second court should know that the limitations imposed on it derive from some source other than the Table of Maximum Punishments. If the court is not so informed, each time a case is returned for a rehearing on either findings or sentence, the accused starts with a measuring yard weighted in his favor with the court not knowing of his advantage.
For the reasons above set out, I disagree that the law officer’s instructions on sentence at the rehearing in the case at bar were improper. While, as indicated, I believe that courts-martial should be fully advised on all aspects of the sentence and am convinced that better administration would result if they are informed of the true facts, my colleagues conclude otherwise. It is apparent, therefore, that, regardless of the reason for any limitation, court members should be charged in future cases merely on the maximum punishment they may adjudge.
In the case at bar, my brothers, for the reasons set out in their opinion, find that the board of review has purged the instruction of any possible prejudice. With that concept I agree. 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. Accordingly, I join them in affirming the decision of the board of review.