(dissenting):
While I join, as I have in the Smith case, in the holding that the instruction on retreat is incorrect, I disagree with the conclusion that the error prejudiced the accused.
The accused weighs 185 pounds and is six feet, one in height. The record of trial does not show how much Minor, the victim, weighs, nor how tall he is. It is, however, reasonably inferable from the record that he, too, is tall and husky. Thus, the accused testified that on one occasion he invited Minor to “go to the gym . . . [and] put on boxing gloves and may the best man win.” In any event, it is manifest from the record that the accused was not so afraid of Minor as to refrain from seeking him out in another barracks for the *499purported purpose of taking him to the Air Police.
At the time of the altercation between them, the accused admitted he saw no weapon in Minor’s hands. He testified that after he was struck by Minor he jabbed at Minor with his left hand “keeping him away from me,” while he reached into his pocket to take out the weapon with which he had previously armed himself. If this testimony is to be believed, then Minor was facing the accused and separated from him by at least part of an arm’s length. Yet Minor was stabbed in the back of the neck. Consequently, the accused’s claim of self-defense is so contrary to his own account of the physical facts as to brand his claim inherently unbelievable. See United States v Brown, 13 USCMA 485, 33 CMR 17. The error in the instructions on self-defense, therefore, did not prejudice the accused. United States v Regalado, 13 USCMA 480, 33 CMR 12. I would affirm the decision of the board of review.
I have considered the petition for new trial, and I find nothing meriting consideration. The accused contends that the “reviewing boards” were prejudiced because there are errors in the transcript of the trial testimony. None of the purported errors are important; and none changes the nature of the accused’s trial testimony in any material respect. It is also said that a fraud was committed on the court by defense counsel’s refusal to enter into the record a description of the physical appearance of Minor, and to request the court-martial to view the scene of the offense. Neither circumstance adds anything to that which is not already .apparent from the record, except the indication of Minor’s race. As to this, there is absolutely no evidence of race prejudice, and I categorically reject the accused’s implication of the existence of such prejudice. If defense counsel did, in fact, refuse to accede to either or both of the implied requests by the accused, the decision was well within his discretion as counsel. See United States v Cambridge, 3 USCMA 377, 12 CMR 133. Neither contention raises any matter which could produce a more favorable result for the accused if a new trial were granted. I would deny the petition.