(dissenting):
I cannot accept the majority’s determination that the Manual’s voting procedure for sentence “is, essentially, a part of military due process,” and that reversal of the court-martial’s imposition of punishment is required because of an erroneous instruction as to the procedure, without considering whether prejudice resulted from the error. Even the failure to instruct as required by the Uniform Code of Mili*438tary Justice does not have that inexorable consequence. United States v Lucas, 1 USCMA 19, 1 CMR 19.
Since the required number of court members must agree before a sentence is legally effective, I am unable to see that it makes any difference whether the vote starts with the lightest or the most severe proposed sentence. If anything, I think that psychologically it is better to start with the most severe and have that rejected than to start with the most lenient and have that discarded. I think the Manual provision is based on the erroneous assumption that the most severe sentence is likely to be the vote of the most senior member; thus the practice starting with the lightest sentence, which presumptively is the vote of the most junior member, corresponds to the practice of letting the junior member collect the ballots. I suggest that, if the law officer had erroneously instructed that the ballots be collected .and counted by the president, rather than by the junior member of the court as provided by the Manual, no prejudice would be perceived in th'e erroneous instruction.
I would affirm the decision of the board of review.