(concurring in part and dissenting in part):
I concur in part and dissent in part.
I agree with my associates that the findings of guilt should be sustained and that a board of review may not direct separation from the service by administrative discharge. However, for reasons which will hereinafter appear, I differ from them on their reversal of the sentence.
After findings of guilt had been returned the law officer instructed the court on the maximum sentence imposable. In doing so he treated the alleged offenses as a single crime for the purposes of punishment, and he used five years as the maximum period of confinement. The court was familiar with the allegations of the specifications, which pleaded the same criminal transaction in different ways, and the evidence established one transgression. With that background it is clear the members were apprised that the sentence was not to be based on a series of different offenses. The accused was represented by individually selected civilian counsel and appointed military counsel and, when the law officer had completed his charge on the sentence, he asked if the defense had any requests or objection to his instruction, and they announced there were none. Not only did they fail to challenge the stated period of imprisonment, but their arguments were directed principally toward convincing the court-martial that confine*61ment should not be imposed. They met with considerable success, for the sentence did not include incarceration. Accordingly, pretermitting any failure on the part of counsel to raise any question at the trial level, and assuming the court-martial was misinformed, I fail to find any possible prejudice stemming from any error which affected only the period of confinement. To hold otherwise is to overlook the obvious fact that the court members, in assessing the appropriateness of sentence, concluded that separation from the service was the only penalty which should be imposed. See Articles 57 and 71, Uniform Code of Military Justice, 10 USC §§ 857 and 871, respectively.
Accordingly, I would affirm the decision of the board of review.