(dissenting):
I dissent.
In my opinion, the positive command *546of Congress that “Each general court-martial shall keep a separate record of the proceedings of the trial of each case brought before it” was violated by the law officer’s action in this case. Uniform Code of Military Justice, Article 54, 10 USC § 854. Moreover, I am of the view that the contents of the instructions which he sought to incorporate by reference may not be determined from the record before us.
In each of these cases, the accused pleaded guilty and was found guilty. Following proceedings in mitigation and extenuation, the law officer, Lieutenant Colonel Carmody, delivered substantially similar instructions to the members of the court-martial. The following is a typical example:
“I will ask the court to recall my general instructions on sentence matters as given in the case of the United States versus Wiggington, earlier this morning. I will remind you that any sentence in this case requires the concurrence of two-thirds of the members present at the time the vote is taken, and now that the court is comprised of eight members, the requirements that two-thirds concur will not be met unless at least six members concur.
“I ask that the court recall my instructions that it should consider all matters in extenuation and mitigation, whether offered before or after the findings, and that the court may consider a plea of guilty as a matter in extenuation and mitigation, in that time, effort and expense are normally saved the Government by such a plea, and it may indicate repentance or first step toward rehabilitation.”
As noted above, Code, supra, Article 54, requires each general court-martial to keep a complete and separate record of the proceedings in each case. Moreover, Code, supra, Article 39, 10 USC § 839, provides:
“When a general or special court-martial deliberates or votes, only the members of the court may be present. After a general court-martial has finally voted on the findings, the court may request the law officer and the reporter to appear before the court to put the findings in proper form, and those proceedings shall be on the record. All other proceedings, including any other consultation of the court with counsel or the law officer, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and in general court-martial cases, the law officer.” [Emphasis supplied.]
In United States v Walters, 4 USCMA 617, 16 CMR 191, we were confronted with the question of unrecorded communications between the law officer and court members during recesses and adjournments. With respect to these as a part of the record, we stated, at page 627:
“The episodes presented in the certificates all occurred during recesses or adjournments of the court-martial which tried the accused — and quite clearly were outside the knowledge of the court reporter. If Congressional intent in requiring a full review of the record is to be accorded any sort of meaning, we cannot condone the defeat of that purpose through permitting a court to receive evidence or instructions ‘off the record’ during a period of nominal recess or adjournment. If, unhappily, the court-martial or some of its members, either intentionally or through inadvertence, are permitted to hear testimony, or to obtain legal advice, during a purported recess, such matters must be deemed part of its ‘proceedings’ and should be reported in the record of trial. In sum, we interpret the ‘proceedings’ of such a body to include any sort of conference at which the court-martial carries on its business of obtaining the facts and the law applicable to the evidence before it — this although such a conference does not purport to constitute a part of the formal functioning of the tribunal.” [Emphasis supplied.]
And in United States v Lowry, 4 USCMA 448, 16 CMR 22, we stated, at page 452:
. . Apparently to support his instructions, he [the law officer] pro*547vided the court with a list of cases. The record is silent on when and how the cases were given to the court, and what the citations were. From the law officer’s remarks and the affidavit of the court member, it would seem that they were dictated orally and related to the offenses of maiming and the lesser included offenses of aggravated and simple assault. But, this information does not solve our problem. The cases plainly were intended as part of the instructions. A record which does not contain all of the instructions is clearly deficient in a vital part. United States v Whitman, 3 USCMA 179, 11 CMR 179.” [Emphasis supplied.]
In United States v Rinehart, 8 USCMA 402, 24 CMR 212, we condemned the practice of permitting use of the Manual for Courts-Martial, United States, 1951, by court members. In the course of that opinion, we stated, at page 409:
“. . . Regardless of the extent of legal knowledge of the court members, an accused is entitled to know what law is being applied. Sometimes mistakes are made. See United States v Berry, 6 USCMA 609, 20 CMR 325. When they are made, they should appear in the record so that they can he corrected on appellate review.” [Emphasis supplied.]
See also United States v Caldwell, 11 USCMA 257, 29 CMR 73.
The underlying principle to be gleaned from the foregoing opinions of the Court is that all proceedings in connection with a particular trial, including advice on legal principles, constitute the “record” within the meaning of Code, supra, Articles 39 and 54. United States v Walters, supra. When the law officer seeks to incorporate instructions by reference to other sources, the reference becomes a part of the proceedings, and its absence from the transcript renders the record incomplete. United States v Lowry, supra. In short, it was Congress’ intent to provide a complete and separate recital of all matters occurring at each trial in order that errors might be corrected on review. United States v Rinehart, supra; United States v Caldwell, supra. When the law officer or court member goes to sources not set forth in the transcript, the Congressional mandate is violated and the record is incomplete.
Here, the law officer sought to incorporate his instructions to the court members in the Wiggington case simply by referring to the fact that he had there advised the members generally with regard to the sentence. We have no way of knowing what he said, for we cannot judicially resort to the transcript of that trial. United States v Dickenson, 6 USCMA 438, 20 CMR 154; United States v Lovett, 7 USCMA 704, 23 CMR 168. It seems clear that his incorporation made the Wiggington instructions as much a part of the proceedings here as the analogous list of cases in Lowry, supra, or the Manual in Rinehart, supra. Thus, when those instructions were not set forth in the transcript before us, the record became incomplete. United States v Walters, supra.
The principal opinion dismisses the claim of inadequacy of the record as “ ‘sophistical’ ” and points out that the accused and his counsel were both present and had the opportunity to have the instructions repeated verbatim in this case. With respect to the sophistry, I merely point again to the precedents cited above and, concerning the duty of the accused or his counsel to require reiteration of the Wiggington advice, one need advert only to our language in United States v Walters, supra, at page 634:
“The second objectionable phase of the January 21 incident centers on the discussion of German tax laws. Here too it is noteworthy that defense counsel was present throughout the colloquy. It can be argued, therefore, that, if misconceptions of law were created, the situation might easily have been rectified at a later time — and prior to findings — through a request for contrary instructions. However, we are inclined to believe that the giving of instructions in open court constitutes so fundamental a part of the Uniform Code’s frame*548work that a departure does not become insignificant merely because defense counsel might later be entitled to request a correct charge. See United States v Lowry, 4 USCMA 16 CMR 22.” [Emphasis supplied.]
The second area in which I separate from my brothers is in connection with their treatment of the effect of the law officer’s erroneous incorporation by reference of his instructions in the Wig-gington trial. Noting that his action was presumptively prejudicial, they find the aura of harm dispelled by their interpretation of the reference as having involved general instructions on voting procedures and the effect of matters in mitigation and extenuation. In short, the principal opinion concludes that the law officer referred the court members to his instructions in Wiggington and followed with a substantially verbatim repetition of the principles he stated in that record.
We are all agreed that instruction by reference is erroneous. Indeed, the Government properly concedes the law officer erred. We have continuously so held since our decision in United States v Gilbertson, 1 USCMA 465, 4 CMR 57. See United States v Chaput, 2 USCMA 127, 7 CMR 3; and United States v Rinehart, supra. And prejudice is shown when we are unable to determine the nature of the instructions. As we said in the Gilbertson case, at page 468:
“. . . If full instructions are not given in open court, defense cannot evaluate their correctness and has no opportunity to object. Further, if. no affirmative statement of the instructions appears in the record, reviewing authorities are handicapped in ascertaining the legal standard applied by the court in its deliberations on the findings.”
True it is in the record before us that Colonel Carmody specifically asked the court members to “recall” certain instructions regarding the requirement that two-thirds of the members present must concur in order to reach a sentence and that they should consider all matters in mitigation and extenuation, particularly the fact that accused pleaded guilty. It does not follow at all, however, that these were the “general instructions on sentence matters” given in the Wiggington trial to which he also referred. Rather, it would appear from his language, quoted above, that he intended to call the members’ attention both to the general instructions which he had given and to the particular matters which he thereafter mentioned. Indeed, I am simply at a loss to determine the logical process which permits one to infer that these “general instructions” covered the same subject matter which the law officer expressly set forth. Yet, this is said to be so clear and convincing that a presumption of prejudice is overcome. United States v Jakaitis, 10 USCMA 41, 27 CMR 115; United States v Allbee, 5 USCMA 448, 18 CMR 72. With this speculation, I cannot agree, for it is at least equally probable that the law officer gave other, damaging instructions in the Wiggington record, and, in that posture, the prejudice flowing from the error has certainly not been dispelled.
It is precisely this sort of situation that makes the inchoate record of trial so damaging to the accused. We are left to guess concerning what was really said in the other case, and there is no source to which we can legitimately turn which will fill the interstices of the advice on sentence. Under such circumstances, I am simply unwilling to strain beyond the limits of logical reasoning in order to supply a deficiency deliberately created by an experienced law officer. This was the sort of situation which Congress had in mind when it required a complete and separate record,' and we should not resort to surmise and' speculation in order to excuse a departure from its mandate.
My conclusion that the law officer's instruction by reference was prejudicial and resulted in an incomplete record brings me to the question whether accused’s defense counsel waived the right to complain here by lack of objection at the trial level. Reliance is also placed on that rule by the majority in ordering affirmance. In the face of this purposeful violation of a fundamental portion . of the Code, I would *549not enforce waiver. We have not uniformly applied the doctrine, and the possibility of a miscarriage of justice is so great in the area of sentence instructions that we should not lightly subject the accused to the effect of his appointed counsel’s silence. See United States v Brennan, 10 USCMA 109, 27 CMR 183; United States v Mamaluy, 10 USCMA 102, 27 CMR 176. Moreover, the responsibility for errors of this nature must rest as heavily upon the law officer and the Government as it does upon the accused. As we said in connection with a similar situation in United States v Caldwell, supra, at page 260:
. . The procedure adopted by this president disregarded the normal method of running a court, and it should not be used but, assuming that written instructions are prepared by the law officer and a copy taken into the secret session, there is a duty on the part of the Government to have them made part of the record on appeal.” [Emphasis supplied.]
I would reverse the decision of the board of review and order a rehearing on the sentence.