Opinion of the Court
Robert E. Quinn, Chief Judge:This case is before us for the second time. On the first appeal, we upheld the accused’s amenability to trial by court-martial as a retired officer of the United States Navy; and found no merit in any of his assignments of error, except one. The exception pertained to the sufficiency of the post-trial review by the staff legal officer to the Commandant, 11th Naval District. The Government conceded error and our examination of the review supported the concession. Accordingly, we set aside the decision of the board of review and returned the record of trial to The Judge Advocate General of the Navy for further proceedings by another convening authority.
In due course, the record of trial was submitted to and reviewed by the staff legal officer of the Commandant, Potomac River Naval Command. On the recommendation of the legal officer, the Commandant approved the findings of guilty and the sentence and forwarded the record for further review by a board of review. The board of review unanimously held that the new post-trial review “corrected the errors . . . noted in the initial review.” It also considered and overruled a number of assignments of error presented for the first time on the second appeal in appellate defense counsel’s “excellent brief.” The case is here again on mandatory review in accordance with the provisions of Article 67(b) (1), Uniform Code of Military Justice, 10 USC § 867; and, again, the question is the adequacy of the post-trial review. It is contended the new review is prejudicial to the accused in that the staff legal officer did not discuss impartially all the evidence presented on behalf of the accused and did not present reasons for his recommendations.
On remand, the staff legal officer did not write upon a clean slate. Necessarily his review was delimited by the appellate proceedings in the board of review and this Court. We determined there was no merit to the several allegations of error except for two deficiencies in the post-trial review. It was entirely proper for the staff legal officer, therefore, to address himself to those matters. And it is perhaps not without significance that the correctness of his action was not challenged by the defense before the board of review, although it was the only reason for continuation of the proceedings. Be that as it may, there is an area of discretion allowed the staff legal officer in the choice of matters which he includes or excludes from the post-trial review. United States v Sulewski, 9 USCMA 490, 26 CMR 270. Obviously, it would be absurd to set out in the review every bit of the testimony and evidence adduced at the trial. Selectivity is essential, but the selection must not be one-sided or so deficient as to present a fair risk of prejudice to the accused. The initial review omitted “all mention” of the evidence presented by the defense. The review here details the substance of the defense case. It is contended, however, that it js fatally deficient because it leaves out certain cross-examination matter from the summary *130of the'testimony of McDaniels, a prosecution witness, and because it does not refer to the testimony of Dingman, a defense witness, both of which tend to impeach the credibility of McDaniels. The material part of McDaniels’ testimony relates'to two matters. First, he testified he and several other named persons, who figured in the charges against the accused, were homosexuals. Earlier, other witnesses had testified to the same effect. McDaniels also testified about a “gathering” on March 4, 1957, at his apartment, at which the accused and some persons described as homosexuals were present. -Two’ other prosecution witnesses testified about the same party and persons. To a substantial degree, therefore, McDaniels’ testimony is cumulative; as a result, the matters tending to impeach him are not important to the over-all recital of the pertinent evidence. It follows that the omissions now complained of do not present a fair risk of prejudice to the accused.
A second alleged deficiency in the review is that the staff legal officer did not “rationalize and disCUSS his conclusions.” Again, the issue arises in an area in which the staff legal officer has large discretion. In the United States v Bennie, 10 USCMA 159, 27 CMR 233, we pointed out that whether a detailed statement of reasons is required to support the staff legal officer’s recommendations depends upon the circumstances of the case. Here the prosecution’s case, as set out in the review, was predicated upon the testimony of actual participants in, and eyewitnesses to, the offenses charged. The accused’s defense consisted of testimony as to his general reputation as a moral and law-abiding person, and testimony by a psychiatrist. The latter testified that, in his opinion, it was possible to determine by examination whether a person “is a sexual deviate”; that he examined the accused a few months before trial and found no indications that he was “a deviate in the psycho-sexual sphere”; that in his opinion the accused was not a homosexual. The differences between the prosecution and defense cases did not involve complicated issues, or the balance of permissible inferences.
The choices available to the convening authority were virtually spelled out by a statement of the evidence; if he believed the participating and eyewitnesses, the accused was unquestionably guilty. If he credited the defense testimony, there might be a reasonable doubt of the accused’s guilt. The staff legal officer informed the convening authority he had to be satisfied that the accused was guilty beyond a reasonable doubt. We cannot say that, on this record, the review is fatally deficient in delineating the basis for the staff legal officer’s conclusions and recommendations.
The decision of the board of review is affirmed.
Judge Latimer concurs.