(dissenting):
I dissent.
I cannot agree with the reasoning found in the opinion of the hoard of review that the rebuttal argument of trial counsel went beyond the limits of proper advocacy. He was fairly answering the observations of defense counsel on the quantum of punishment which the court-martial could suitably impose and, as we have often stated, while he may not strike foul blows, certainly he is at liberty to strike hard ones. See United States v Doctor, 7 USCMA 126, 21 CMR 252; United States v Allen, 11 USCMA 539, 29 CMR 355. If that principle stands for anything, then trial counsel can argue zealously, in a case which involves convictions for larcenies from both the Government and a fellow-seaman, that separation from the service by a punitive discharge is appropriate. Enthusiasm for his cause is not to be condemned, and I find these words of wisdom by the Supreme Court of the United States in Dunlop v United States, 165 US 486, 498, 41 L ed 799, 17 S Ct 375 (1897), which I believe to be apropos in this case:
“. . . If every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand, since, in the ardor of advocacy and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptation.”
See also Di Carlo v United States, 6 F2d 364 (CA 2d Cir) (1925).
Neither can I agree with my associates that a majority of the board of review did not find both error and prejudice. Conceding that the principal opinion lacks erudition, the action taken points unerringly to a purging of prejudice rooted in the asserted unfairness of trial counsel. In that connection, two members joined in eliminating the punitive discharge, and the only issue appearing of record is that alleged error. Obviously, the member who concurred in result did not adopt the rationale of the author member, but he must have had some reason for reducing the sentence and, had he been limiting his consideration to matters which properly influence the appropriateness of sentence, it would have been a simple matter for him to have so stated. Certainly, in the absence of comments to the contrary, I assume he gave consideration to the only issue which divided the board and not to some conjectural matters. Moreover, I find evidence in the record which proves to my satisfaction that neither he nor the author member were passing on the fitness of sentence absent prejudice. This case, without significant change in facts, has been twice considered by them, and the record shows that on the first review they found no error and concluded that an identical sentence was appropriate. On this second review, when they grappled with the prejudicial effect of trial counsel’s argument, that part of the sentence adjudging a bad-conduct discharge was eliminated. Significantly, that was the ingredient accentuated by trial counsel in his argument. From that it seems to follow naturally that they were reducing the sentence to purge the prejudice flowing from the alleged error and not because, on a review of the entire record, they concluded the nature of the two larcenies and the accused’s record rendered the punitive discharge improper.
In addition to the foregoing, Article 59 of the Uniform Code of Military Justice, 10 USC § 859, provides that a sentence of a court-martial shall not be held incorrect on an error of law unless the error materially prejudices the substantial rights of the accused. Assuming for this part of my presentation that the concurring member properly based his concurrence on appropriateness, absent a finding by the author member that there was prejudice, I can find no reason to justify the action taken by the latter. Rather than assume a complete void in his reasoning, I conclude he intended to say that when the record is doubtful about whether an *322accused is harmed, he resolves the doubt in favor of an accused and finds prejudice. He thereupon takes action to correct the injustice. If that was his approach to the problem, then he erred, for the foundation for that rule is legal error, and here there is no impropriety. Therefore, if his reasoning was faulty, the most that can be said for the board’s opinion is that there is no proper reassessment of sentence by a majority of the members.
One other matter bears comment. The Court’s opinion makes reference to the desirability of boards of review stating their position more clearly. With that I agree, but when a board member discusses an issue such as this, I conclude he is not writing an advisory opinion. Rather, I suspect, in the absence of some reservation, that he is using his rationalization to support his results. But whether I am correct in my conclusion or my associates make a proper analysis of the opinion, there is sufficient doubt about the question to compel a return of this record to the board for clarification.
Accordingly, I would return the record to the board of review with instructions to reconsider the appropriateness of sentence without the erroneous conclusion that trial counsel erred.