Opinion of the Court
ROBERT E. Quinn, Chief Judge:On his plea of guilty, a general court-martial at Ft. McPherson, Georgia, convicted the accused of five violations of the Uniform Code of Military Justice, including desertion, in violation of Article 85, 10 USC § 885, and adjudged a sentence of dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The convening authority and a board of review affirmed the findings of guilty and the sentence. The case is before us on petition for review on the ground that the law officer erred in refusing a defense request for an instruction in regard to the sentence.
Before sentence was imposed the accused testified in mitigation. He reviewed the emotional circumstances which influenced his decision to desert the service and to commit the other offenses. He concluded his direct testimony with a representation that he felt that if he could stay in the Army he would “serve it right.” Both defense and trial counsel presented arguments on the sentence. The substance of defense counsel’s remarks is summarized in his plea to the members of the court that “if . . . [they could] possibly find it in . . . [their] hearts that . . . [they] allow this man to remain in the Army.” Trial counsel countered the argument by referring to the accused’s desertion and noting that “now, all of a sudden” he maintains he can serve honorably. He contended that “an appropriate sentence here must include a punitive discharge.”
At the conclusion of the arguments, ■defense counsel submitted two requests to instruct. One pertained to the voting procedure to be followed by the court in determining the sentence. This request was granted by the law officer, and included in his final instructions. The other request was denied. It reads as follows: “A plea of guilty is a matter in mitigation. It may indicate a step toward rehabilitation.” The defense contends the accused was prejudiced by the refusal to give the requested instruction.
Sentence is a vital part of a court-martial proceeding. United States v Allen, 8 USCMA 504, 507, 25 CMR 8. During that stage of the trial, the law officer’s responsibility to provide guidance to the court-martial is no less than his responsibility in regard to the findings. United States v Strand, 6 USCMA 297, 20 CMR 13. He must be alert to the essentials of a fair trial throughout both stages. Just as he cannot disregard a theory of defense before findings, he cannot minimize matters in mitigation before sentence. There are, however, areas of discretion.
So far as instruction on the sentence is concerned, the basic requirement is that the court-martial be properly advised of the legal limitations of punishment. That is not all. Since the court-martial is not bound, except in certain cases, to adjudge a maximum sentence, it is appropriate for the law officer to provide “general guides governing the matters to be considered in determining the appropriateness of the particular sentence.” United States v Mamaluy, 10 USCMA 102, 106, 27 CMR 176. However, he is not required to detail each and every matter that the court-martial might possibly consider in mitigation. As we pointed out in United States v Harris, 6 USCMA 736, 21 CMR 58, in connection with a recital of the evidence before findings, “the emphasizing of particular facts by special instructions will often mislead a jury as to their relative importance.” The matter is one which rests in the sound discretion of the law officer.
Commonly, some consideration is given an accused merely because he pleads guilty. See Newman, Pleading Guilty for Considerations: A Study of Bargain Justice, 46 Journal of Criminal Law 780 (1956). As a re-*161suit, an instruction to the effect that the accused’s plea of guilty may be regarded a mitigating circumstance is not inappropriate. United States v Friborg, 8 USCMA 515, 25 CMR 19; United States v Mamaluy, supra. Whether such instruction must be given, however, is another question. More than that, it is doubtful indeed that a plea of guilty is a step toward rehabilitation. The incidence of recidivism is too high to regard the plea as an accurate gauge of an affirmative indication of rehabilitation. See Newman, supra. Thus, the law officer was entirely correct in rejecting the latter part of the requested Instruction. Assuming he should have granted the first part of the request, his refusal cannot be considered prejudicial on the record before us. The accused had testified at length on the circumstances surrounding the commission of the offenses. The issues he raised were whether the matters which induced him to desert and to commit the other offenses would influence him in his future conduct, and whether he could “soldier” if permitted to remain in the service. His plea of guilty had nothing to do with these issues. Consequently, the refusal to instruct on the mitigating effect of the plea could not have influenced the court in its decision to adjudge a punitive discharge. That it had no significant influence on the period of confinement is evidenced by the fact that while the maximum punishment extended to confinement for five years and seven months, the court adjudged a sentence of confinement for one year. If it was error to fail to advise the court-martial that a plea of guilty may be considered by it in determining an appropriate sentence, the error did not prejudice the accused.
The decision of the board of review is affirmed.
Judge LatimeR concurs.