(dissenting):
Two reasons impel me to dissent. First, I doubt strongly the instruction is so wrong that there is a fair risk the court-martial was misled to the accused’s prejudice. To advise the court-martial that the consequence of a particular finding of fact is acquittal or conviction, as the case may be, does not necessarily raise any question as to the burden of proof. See United States v Statham, 9 USCMA 200, 204, 25 CMR 462; United States v Mallow, 7 USCMA 116, 125, 21 CMR 242; cf. United States v Noe, 7 USCMA 408, 22 CMR 198; United States v Rowan, 4 USCMA 430, 436, 16 CMR 4. In fact, it is not unusual for defense counsel, who presumably are alert to the dangers of shifting the burden of proof, to phrase requested instructions along the lines of the instruction used by the law officer. See United States v Smith, 11 USCMA 321, 29 CMR 137. Indeed, the challenged instruction is substantially similar to one recommended by the United States Supreme Court in Wilson v United States, 162 US 613, 624, 40 L ed 1090, 16 S Ct 895 (1896). In that case, the Supreme Court said that if the voluntariness of a confession is disputed, the members of the jury should be instructed to reject the confession “if upon the whole evidence, they are satisfied it was not the voluntary act of the defendant.” (Emphasis supplied.) The instruction here is to the effect that if the court-martial finds “the request [for counsel] was made and denied” it must reject the pretrial statement. In my view, this language conveys the same idea expressed in the recommended instruction in the Wilson case. It amounts to a direction to the court-martial to reject the pretrial statement if it finds it is not voluntary because the accused was denied counsel. Nowhere in the instruction is the burden of proof mentioned; and nothing in it says the burden of proving involuntariness is on the accused. See United States v Noe, supra.
At trial, defense counsel apparently construed the instruction the same way I construe it. He made no objection and offered no change in the phraseology, although accorded several opportunities to do so. In any event, if I misconstrue the instruction, and misunderstand the meaning of defense counsel’s failure to object, another reason compels me to disagree with my brothers.
Although the law officer has primary responsibility for instructing the court-martial correctly on material issues, counsel also have an obligation. They should call attention to errors or inadequacies, so the law officer can make appropriate changes. The failure *77to discharge that obligation, when accorded the opportunity, may result in waiver of the defect as ground for reversal of an otherwise proper conviction. Of course, the rule of waiver is not inflexible; and at times this Court has refused to apply the rule to prevent manifest injustice to the accused. Generally, when the alleged error depends upon a particular construction of certain language, we have looked closely at the construction accorded the language by the parties at trial. For example, in United States v Johnson, 3 USCMA 447, 454, 13 CMR 3, we said: “[T]he accused’s own evaluation of the instruction at the trial level may be considered in weighing its significance on appeal.” In my opinion, the parties did not at trial consider the instruction to suffer from the serious infirmity my brothers find in it.
When the accused’s pretrial statement was admitted into evidence, the law officer instructed the court on its responsibility as to voluntariness. He asked the court-martial if it had any question “as to the meaning and effect” of his instruction. Replying for the court, the president answered in the negative. Defense counsel made no objection and offered no request for modification. Later in the out-of-court discussion on the proposed final instructions, the law officer informed defense counsel the final instruction on volun-tariness would be the same as the instruction given at the time the accused’s pretrial statement was admitted into evidence. Defense counsel’s comment was: “That’s fine.” Moreover, at the end of the instructions, defense counsel was given another opportunity to object or request other instructions; once more he had no request. Speaking of the effect of such trial actions on an appellate attack on the correctness of an ambiguous instruction, we said:
“. . . Here again we are faced with an instruction which is attacked principally upon the ground that it lacks clarity and precision. On two occasions, the law officer interrogated defense counsel as to any objections they might have to the instructions given or as to their desires to submit additional requests. Each time, defense counsel responded there were no exceptions to be taken and no requests to be submitted. In line with our previous decisions, we hold that the defense having failed to request clarification or amplification cannot successfully question the instructions on these grounds on appeal.” [United States v Kloh, 10 USCMA 329, 333, 27 CMR 403. See also United States v Miller, 8 USCMA 33, 23 CMR 257.]
In his second assignment of error, the accused contends he was prejudiced by the law officer’s answer to a question asked by the president in regard to the sentence. Before the court-martial closed to deliberate on the sentence, the following occurred:
“LO: Are there any questions from the court?
“PRES: Yes, I would like to ask a question, please. Is the court privileged to make, in connection with the case at hand, any recommendations other than a sentence in this case?
“LO: The court’s function here is solely the imposition of a sentence in accordance with the rules as I have outlined them to you; any administrative determination is not the concern of the court. Are there any further questions?”
Again we are asked to construe the meaning of words used, and acted upon, at the trial level. Appellate defense counsel contend the president’s question indicates the court wanted to know if it could exercise its traditional right to recommend clemency. See United States v Doherty, 5 USCMA 287, 291, 17 CMR 287. Obviously, the law officer did not construe the question in that light. His reply indicates he believed the court-martial wanted to know if it could recommend some sort of administrative action, apart from its judicial act of imposing sentence. From that standpoint, the law officer was correct in advising the court-martial that it could not concern itself with “any administrative determination.” See United States v Grcich, 10 USCMA 495, 28 CMR 61; United States v Jemison, *7810 USCMA 472, 28 CMR 38. Since neither the president of the court nor the defense counsel objected to the law officer’s construction of the nature of the president’s question, it can hardly be argued at this level that they really thought the question related to the general right of the court-martial to recommend clemency.
The law officer’s instructions very clearly spelled out the sentence power of the court-martial. The sentence work sheet, which was examined by defense counsel and submitted to the court without objection, indicated that among the permissible punishments the court could impose were such minor penalties as detention of pay and admonition. Yet, the court imposed a sentence extending to dishonorable discharge and confinement at hard labor for one year. In light of its action, there is no possibility the court would not have imposed any sentence if it had been informed of the right to recommend clemency. Cf. United States v Samuels, 10 USCMA 206, 27 CMR 280. Consequently, even if the law officer misconstrued the president’s question, the accused was not prejudiced. In addition, the post-trial review carefully considered all the circumstances, including the advisability of extending clemency. There is, therefore, no reasonable basis from which to conclude the accused was prejudiced by the law officer’s answer to the 'president’s question.
I would affirm the decision of the board of review.