Opinion of the Court
DARDEN, Judge:On January 11, 1968, the accused— having entered a plea of guilty — was tried and convicted by a special court-martial aboard the U. S. S. FRANCIS MARION for absence without leave from 12:00 a.m., December 26, 1967, until 10:20 p.m., December 31, 1967. Relying upon the provision of paragraph 127c, Manual for Courts-Martial, United States, 1951, that permits the imposition of a punitive discharge when there have been two previous convictions, although such a discharge is not authorized as a punishment for the current offense, the court imposed a bad-conduct discharge, in addition to forfeiture of $86.00 per month for six months, and confinement at hard labor for a like period. The ship’s Commanding Officer, as the convening authority, then reduced the period of confinement and forfeitures to three months. The supervisory authority, however, disapproved the conviction and the sentence as mitigated, finding deficiencies in three areas of the record: (1) Failure to tailor the pre-sentencing evidence in keeping with the demands of United States v Wheeler, 17 USCMA 274, 38 CMR 72; (2) imposition of a punitive discharge based on two previous convictions when one was shown not to have had the final review necessary to make it admissible (United States v Pope, 5 USCMA 29, 17 CMR 29); and (3) because an out-of-court statement made by counsel in behalf of the accused raised a question as to the providence of the accused’s plea.
At his rehearing by special court-martial on April 5, 1968, the accused was again convicted, pursuant to his guilty plea, of this same alleged absence without leave. In this instance, the sentence included a bad-conduct discharge, forfeiture of $86.00 per month for three months, and confinement at hard labor for three months. During the interim, the defective prior conviction had reached finality and thus became admissible. Hence, two prior convictions were again introduced against the accused for sentencing purposes. Cf. United States v Reed, 2 USCMA 622, 10 CMR 120. The convening authority approved the findings and sentence. However, the supervisory authority reduced the period of unauthorized absence from five to three days by changing the dates from December 26-31, to December 26-29, 1967. The sentence was approved. The board of review then affirmed the findings as well as the sentence.
Our consideration of this case is restricted to two specific areas of inquiry. Our first concern is whether Article 38(b), Uniform Code of Military Justice, 10 USC § 838, was complied with in this case. Essentially, this provision of the Uniform Code involves accused’s right to and choice of counsel representation at trial by court-martial. United States v Donohew, 18 USCMA 149, 39 CMR 149, involving the same question, is controlling, for on this point the two cases are indistinguishable. Minimal but sufficient compliance in Donohew *350causes us to conclude that there was satisfactory compliance with Article 38 (b) here.
The remaining issue is whether the president’s instructions that the previous convictions “logically indicate that a more severe sentence should be adjudged” prejudiced the accused. The president’s instruction on sentencing matters included the following:
“In exercising its discretion in determining the punishment, if any, to be adjudged, the court must consider all the facts and circumstances of the case. It must give due consideration and appropriate weight to the following matters which have been presented to this court and which logically indicate that a more lenient sentence should be adjudged: The domestic family difficulties experienced by the accused, and the duration of the accused’s pretrial restriction.
“The court is reminded that the accused entered guilty pleas in this case, and is advised that pleas of guilty are a matter in mitigation which must be considered along with all the other facts and circumstances ,in the case. Time, effort and expense to the government usually are saved by pleas of guilty, additionally, such pleas may be a manifestation of repentence [sic] and a first step toward rehabilitation.
“In exercising its discretion in determining the punishment, if any, to be adjudged, the court may also consider the following matters which have been presented to the court and which logically indicate that a more severe sentence should be adjudged: The previous convictions of the accused by Courts-Martial.” [Emphasis supplied.]
Appellate defense counsel argue that the accused is prejudiced, since with this instruction the court no longer may exercise an absolute and unfettered discretion in reaching a determination of what constitutes a just and adequate sentence.
Appellate Government counsel look to the whole of the instruction and find nothing detrimental to the accused. We are in accord with this assessment.
In United States v Wheeler, supra, at page 277, this Court inveighed against the use of “mere rote” instructions on maximum authorized punishments in cases in which the accused had offered mitigating evidence to the court in an attempt to reduce punishment. This tribunal did so because:
“. . . [T]he whole thrust of this Court’s opinions regarding pre-sentence instructions has been to require the law officer to delineate the matters which the court-martial should consider in its deliberations. While the law officer has some discretion in this regard, we have expressly noted that such ‘ought not to have the same restraining effect during the sentence procedure.’ United States v Cook . . . [11 USCMA 579, 581, 29 CMR 395].”
At a later point the same opinion continued:
“. . . In short, we reiterate here the duty of the law officer to tailor his instructions on the sentence to the law and the evidence, just as in the case of his prefindings advice. United States v Yocum [17 USCMA 270, 38 CMR 68], United States v Hutton, ... [14 USCMA 366, 34 CMR 146].” [17 USCMA, at page 277.]
Partisanship was not intended, however, for the Wheeler decision also contains this important proviso:
“. . . At the same time, the Government was likewise entitled to have advice presented regarding the other side of the coin, namely, that the retention of the accused was totally unjustified in light of his inexcusable failure to remain present for duty. We take no sides on the issue. We merely emphasize the duty of the law officer to advise the court-martial of the nature of its sole responsibility for the sentence; the exercise of its duty; and what it was entitled to consider.” [17 USCMA, at page 278.]
*351In the present ease, the president of this special court-martial followed the dictates of Wheeler to the fullest. In the first instance, he advised the court that in exercising its discretion in determining punishment:
. . It must give due consideration and appropriate weight to the following matters which have been presented to this court and which logically indicate that a more lenient sentence should be adjudged: The domestic family difficulties experienced by the accused, and the duration of the accused’s pretrial restriction.” [Emphasis supplied.]
After advising the court that guilty pleas, since they are beneficial to the Government, were also a matter in mitigation, the president then turned to the evidence in aggravation by giving an instruction that now forms the basis for this assignment of error. The instruction in question reads:
“In exercising its discretion in determining the punishment, if any, to be adjudged, the court may also consider the following matters which have been presented to the court and which logically indicate that a more severe sentence should be adjudged: The previous convictions of the accused by Courts-Martial.” [Emphasis supplied.]
We view the president’s advice as a fulfillment of the instructional standard that Wheeler intended to inscribe. Domestic difficulties, the entering of a guilty plea, and pretrial restraint are surely mitigating matters favoring the accused. These factors “logically” indicate that a more lenient sentence should be adjudged. Prior convictions, under the same reasoning, “logically” indicate the propriety of adjudging a more severe sentence. If they did not, their evidentiary presence would be without meaning.
The president’s instruction did no more than impart to the court advice that was obvious and that was admissible under Wheeler. Our conviction that this is so is reinforced by the court’s being advised in a preceding paragraph that it alone was responsible for determining the sentence and that it was within the court’s prerogative “to impose no punishment at all.”
The decision of the board of review is affirmed.
Chief Judge Quinn concurs.