(concurring in part and dissenting in part):
I concur in part and dissent in part.
I concur with the conclusion that trial defense counsel erred when he chose the wrong forum to air the dispute between himself and his client. Significantly, the staif judge advocate, convening authority, and the board of review all reached the same conclusion. Accordingly, the only issue left to be resolved is whether any prejudice suffered by the accused has been purged. My associates find no harm on the findings, and obviously that result is appropriate for the error occurred after a plea of guilty and the testimony by the accused was consistent with the plea. But they go on to hold that a rehearing on the sentence must be ordered, apparently on the theory that the action taken by intermediate reviewing authorities is all for naught, except as it benefits the accused by reducing the maximum sentence imposable on a rehearing. Parenthetically, I note that in their briefs appellate defense counsel do not argue prejudice on sentence. In that they display discrimination for, unless they can win this case on their theory that the error was so grave it should not be assessed for harm, they have nothing substantially to support their cause.
A board of review and a convening authority have been given the power to assess the appropriateness of sentence based on the entire record. It has been the law of this Court that if they find error and reassess sentence, giving consideration to the possible impact of the irregularity, we do not reverse unless we find an abuse of discretion. In the case at bar, the error and its effect was appraised by each, and the sentence-*80as it reached us was considered appropriate. Certainly, as I hope to point out, there is nothing in this record which should cause us to hold that the lower reviewing tribunals abused their discretion in their actions on the sentence.
The accused was charged jointly with one Weems of having committed four serious offenses. He pleaded guilty to all and, by his confession while on the witness stand, was the ringleader. The maximum period of confinement to which he could have been sentenced exceeded fifteen years. Fortunately for him, his trial defense lawyer obtained a commitment from the convening authority that if he pleaded guilty he would suffer no more than a two-year term of incarceration. I will leave it to the imagination of the reader as to whether this arrangement could have been effectuated had the accused at that time confessed to being the principal actor. However, regardless of that facet of the controversy, the court-martial concluded eight years’ confinement was appropriate. We must, therefore, consider that the convening authority’s reduction and the board of review’s affirming action knocked six years’ confinement off the period found appropriate by the original tribunal.
If, as the accused testified on the stand, he was the ringleader, then he is indeed the beneficiary of unusual mercy. The convening authority concluded that four years’ confinement was an appropriate period of confinement for a secondary participant. But, even if they were partners in crime, he received one-half the confinement meted out to his conspirator. Granting he should have been given some consideration for his acknowledgment of guilt, I am convinced that had the error not occurred, his plea of guilty and his confession that he engineered the illegal venture would have insured him a sentence far more severe than the one affirmed. Particularly is that true when he is a three-time loser. His record shows that he has two prior convictions, one which involved a seven months’ absence without leave. The sentence involved a bad-conduct discharge which had not been executed at the time of this trial. It would thus appear that any harm occasioned by accused’s trial defense counsel had been purged effectively and entirely by a six-year reduction in the period of confinement. I have limited my discussion to the period of incarceration deliberately, for I doubt that any one would suggest that with a prior bad record, an accused pleading guilty to conspiracy, housebreaking, larceny of rifles worth $651.00, and soliciting another to commit a criminal offense would escape forfeitures and a separation by dishonorable discharge.
To emphasize the treatment given this issue by the board of review, I quote the relevant portion of its decision:
“If any question remains as to whether or not the accused Winchester was prejudiced because of a violation of. the attorney-client prive-lege [sic], such must be resolved against him if only because of the sentence as it now stands. As the result of a pretrial agreement brought about by his trial defense counsel, the convening authority has reduced the punishment to dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for two years. This Board of Review has scrutinized the appropriateness of the sentence in light of the error assigned and has determined that no further reduction in the sentence is warranted. United States v Cruscoe [sic], 3 USCMA 793, 14 CMR 211; United States v Atkins, 8 USCMA 77, 23 CMR 301.”
In addition to the authorities cited by the board, in United States v Miller, 10 USCMA 296, 27 CMR 370, we held that a board of review is free to measure the possibility of harm to an accused and purge the damage flowing therefrom. Twice this accused has been the beneficiary of that measurement, and I do not believe he is entitled to additional bites at the apple. Accordingly, I would affirm the decision of the board of review.