(dissenting) :
I dissent.
It is conceded that this accused had seventeen years of outstanding service prior to April 14, 1958. However, on that date he was convicted of and sentenced for being drunk and disorderly and since then and prior to the instant case he has twice been punished for military offenses which disclose an adamant refusal to submit to the norms of the military society. Accordingly, these particular crimes make a total of six in a series of criminal delicts which show clearly that accused has slipped to a level where his value to the services has been seriously impaired. Unfortunately for him, the excessive use of alcoholic beverages has tarnished his previously good record and, while he is entitled to commendations for his bravery and good service, the findings and sentence approved by the board of review should be affirmed absent some denial of a substantial right.
For the purpose of this case, I am willing to assume that some form of mental disturbance was raised by the testimony. However, that condition and voluntary intoxication as defenses to the crimes or as they might reduce the degree of the offenses, were submitted to the court by appropriate instructions and the issues were resolved against the accused. Therefore, prior to sentence the only question before the law officer was whether he was required to inform the court-martial members that they might consider “partial mental responsibility” in extenuation and mitigation of the punishment. There was no request as such for an instruction on that matter and no objection was registered to the instructions given by the law officer. As I read the record, there was only an inquiry and a response thereto by the law officer in an out-of-court hearing, which apparently satisfied defense counsel that the matter should be pursued no further. This is the record of the colloquy in the out-of-court conference:
“DEFENSE COUNSEL: Are you going to give an instruction on the fact that there can be a mitigation in terms of partial insanity and so forth?
“LAW OFFICER: I am not sure I understand just what you mean?
“DEFENSE COUNSEL: Sometimes, as I understand it, if a court finds a person to suffer from partial mental responsibility, even though it is not sufficient to excuse from the offense itself, it is a thing that should be taken into consideration in mitigation in sentencing.
“LAW OFFICER: Well, of course, if I don’t see that there has been any finding of that kind—
“DEFENSE COUNSEL: I don’t know how one knows if there was or not because the findings are either guilty or not guilty, and if there is a finding of guilty they don’t explain the basis on which they found him guilty.
“LAW OFFICER: Except on the basis on the instruction that if they had found partial mental responsibility they would be required to find that he didn’t have the specific intent required in Specification 3 of Charge II and the Specifications of Charge I. There has been evidence submitted as to partial mental responsibility but in making their findings it would appear to me that the court did not *583so find that that existed, and it is not my intention to specifically instruct on sentence in that regard.”
Nothing further was said on that subject and when court reconvened, the law officer gave his charge to the court-martial on the sentence. The record shows that defense counsel noted he desired no further instructions and had no objection to those given.
Without belaboring the proposition that counsel should have made a request or objected to the failure of the law officer to cover the subject, I will assume the point was reserved for appeal. Taking that view of the record, the law officer was faced squarely with the proposition of whether he must instruct the court-martial members that they might consider a factual issue which they had already concluded had no merit. He elected not to do so, and my brothers reason from that fact that he never exercised his discretion. That conclusion has its foundation in sand, but obviously the majority must reach it in order to take this case out from under the rule that singling out particular evidence and emphasizing it for extenuating purposes is discretionary with a law officer. Here, as I view the record, the law officer was following the last-mentioned principle for he advised counsel for the accused that he was not inclined particularly to mention accused’s partial mental responsibility as a mitigating factor because the court-martial had found that no such condition existed. The law officer, out of an abundance of caution, could have done otherwise, but he concluded the court-martial had found there was no mental impairment, and the point I desire to make is that he was not required to instruct the court to reconsider the same issue on sentence. A similar situation would have been presented had the defense asked that he isolate intoxication as an extenuating circumstance and instruct the court that it could be considered as a mitigating factor. And by way of further illustration, if entrapment became an issue which was resolved against the accused, defense counsel could request the law officer to inform the court that it could consider entrapment in extenuation. Requests of that kind could be made on every favorable fact or circumstance. However, if, as the law has been, the giving or not giving of a specific instruction on one extenuating factor when there is evidence to support it is discretionary, a fortiori the refusal to submit an instruction when the law officer knows the court-martial has found there is insufficient evidence to raise a doubt about the presence of a factor is well within the limits of a law officer’s discretion.
Moreover, in that connection I am puzzled by the statement that this law officer failed to exercise his discretion because he misunderstood or was confused about the law. If he erred as a matter of law, he was not operating in a discretionary field. Conversely, if he ruled in an area where he had alternative courses to pursue, he did not fail to exercise his discretion because he followed a path not foreclosed by law although unfavorable to the accused. Here, the law permitted him the choice between giving an instruction which was legally unnecessary or remaining silent on the subject. He chose the latter and while he said nothing about the law permitting or precluding him from instructing on the subject, I know of no reason for suspecting that he was ignorant of the Manual provision. He was dealing with the facts of a particular case and not in vacuum, and I believe he was on fairly solid ground. It seems incongruous to me to hold that he was confused or misunderstood the law merely because he rejected a request to revive an issue which had been settled. That is not what the Manual requires, for it speaks of evidence which falls short of exculpating but, not only did this court-martial pass on the issue of insanity, it made a specific finding on evidence which fell short of proving that issue and it reached the conclusion that accused’s mental condition was unimpaired even for reductive purposes. Moreover, the Manual does not require the giving of any instruction on extenuating circumstances, be they mental, moral or physical. Finally, on this aspect of the case if, as my brothers seem to suggest, the law officer may have been confused *584because he refused the invitation to instruct when he could have ruled otherwise, then there is apt to be considerable confusion in other cases, for the law officer was merely following a principle announced by us. If he cannot do that without being charged with lack of discrimination, then every bit of testimony favorable to an accused must become the subject of a specialized instruction on sentence if a request is made.
In United States v Rake, 11 USCMA 159, 29 CMR 383, decided this term, we stated:
“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.”
The principle announced there should be controlling in this instance. The evidence was before the court-martial, all the facts in extenuation and mitigation were forcefully argued by both counsel, and the court members were unshackled and unrestricted in their consideration of all the evidence introduced on both findings and sentence. Accordingly, I find no legal basis for reversing a perfectly valid sentence.
I would affirm the decision of the board of review.