Opinion of the Court
ROBERT E. Quinn, Chief Judge:A general court-martial at Fort Dix, New Jersey, convicted the accused of two specifications alleging disrespect to his superior officer and one charge of willful disobedience of a lawful command, in violation, respectively, of Articles 89 and 90, Uniform Code of Military Justice, 10 USC §§ 889, 890. It sentenced him to a dishonorable discharge, total forfeitures, reduction to the lowest enlisted grade, and confinement at hard labor for three years. A board of review reduced the findings of willful disobedience to failure to obey a lawful order, in violation of Article 92, Uniform Code of Military Justice, 10 USC § 892, and modified the sentence within the legal limits of the reduced findings. We granted further review to consider the accused’s allegation that the law officer committed prejudicial error by refusing to give a requested instruction on mental deficiency as a mitigating circumstance in assessment of the sentence.
The accused has had nearly two decades of service, including combat in World War II and Korea. Among other awards, he twice received the Silver Star for gallantry in action — the first for an engagement near Venafro, Italy, in November 1943; the second for an assault against the Chinese forces in Korea. About a year and a half before the present offenses, the accused was injured in a night parachute jump. Shortly therafter he was hit on the head. About that time, the accused’s wife began to notice a change in his conduct. He seemed to be “extremely nervous”; he had nightmares from which he would awaken in a “cold sweat”; and he began to experience “black-outs.” In September or October 1958, the accused was hospitalized in the neuropsychiatric ward for about three weeks. .About the same period, the accused’s conduct involved him with the military courts. In just over a year’s time, he was tried on three separate occasions for varying offenses, including one of disrespect to a commissioned officer.
Accused’s mental competency was made an issue at the trial. To rebut the defense showing of traumatic injuries and peculiarities of conduct, the Government called a military psychiatrist who had examined the accused on two occasions and who had reviewed his case history, which included examination by three other psychiatrists and psychological testing. The doctor found no evidence of disease or derangement, and in his opinion the accused knew the difference between right and wrong and could adhere to the right. The court-martial decided the sanity question against the accused, and found him guilty of the offenses enumerated above.
*581Before the law officer instructed the court members in regard to the sentence, defense counsel asked for an out-of-court hearing. The request was granted. At the hearing, defense counsel asked whether the law officer intended to give an instruction to the effect that while the evidence of the accused’s mental responsibility was “not sufficient to excuse from the offense itself, it is a thing that should be taken into consideration in mitigation in sentencing.” The law officer said he did not. He explained his decision as follows: The court-martial did not find even partial mental responsibility on the part of the accused; if it had, it would have found, under the instructions given before findings, that the accused “didn’t have the specific intent required” for some of the offenses found. Apart from advice on the use of a sentence work sheet and the mechanics of voting, the law officer’s instructions in regard to the sentence consisted principally of a statement on the maximum punishment for the offenses found. The question before us is whether his refusal to grant the defense request was error prejudicial to the accused.
Recently we held that the law officer has considerable discretion in delineating the matters which the court-martial may consider in its deliberations on the sentence. United States v Rake, 11 USCMA 159, 28 CMR 883. However, it seems to be overlooked at the trial level that the sentence practice, while substantially like the practice before findings, is not, and should not be, as circumscribed as the latter. See United States v Olson, 7 USCMA 242, 22 CMR 32; United States v Strand, 6 USCMA 297, 20 CMR 13. The feeling of caution that before findings tends to narrow the law officer’s disposition to exercise his discretion ought not to have the same restraining effect during the sentence procedure, especially if there is a legitimate request by one party and no objection by the other.
The Manual for Courts-Martial, United States, 1951, points out that when an issue of sanity is raised, and the court determines the accused to be sane, it may nonetheless “consider any evidence with respect to the mental condition of the accused which falls short of creating a reasonable doubt as to his sanity.” Paragraph 123. Since there was substantial evidence on the issue, defense counsel was justified in calling the matter to the law officer’s attention. In fact, in the context of trial counsel’s argument his action was fundamental to the defense plea for leniency. The prosecutor had contended, in his argument on the sentence, that the courts-martial which had tried the accused for his previous offenses “undoubtedly” considered the accused’s prior record, and on the basis thereof imposed “relatively small sentence [s]” which did not include confinement and which did not reduce the accused to a grade below that of E-5 (Sergeant). “Now once again,” trial counsel argued, “the accused has asked you to consider his previous service and to permit him to remain in the Army.”1 The only apparently “new circumstance” was the evidence of the accused’s mental condition. As a result, it is arguable that defense counsel’s inquiry related to so fundamental an issue that the law officer’s failure to include an appropriate instruction constituted an abuse of discretion. However, we need not reach that question. The record of trial shows that the law officer never exercised his discretion. He gave no instruction because he misunderstood or was confused as to the applicable law. Contrary to the Manual provision, he obviously believed that evidence of the accused’s mental condition was not a mitigating circumstance because the court-martial had, by its findings, indicated he was not suffering from a condition which totally or partially absolved him from legal responsibility for his acts. Had he known the true rule of law, the law *582officer might well have granted the implied request of defense counsel. As it is, his misconception of the law deprived the accused of the benefit of an informed ruling on an important point. Speaking of a substantially similar situation in connection with a ruling on evidence obtained from a search, we said:
“In our opinion, a conviction should not rest upon uncertainty and confusion concerning the correct principles of law applicable to a vital part of the case.” [United States v Berry, 6 USCMA 609, 614, 20 CMR 325.]
The decision of the board of review as to the sentence is reversed, and the sentence is set aside. A rehearing on the sentence may be ordered.
Judge Ferguson concurs.The record does not show whether evidence of the accused’s heroism and good conduct had been presented to the earlier courts-martial. For our purposes, we assume the validity of the argument. Cf. United States v Olson, 7 USCMA 242, 246, 22 CMR 32.