(dissenting):
The mitigating matter on which this reversal is predicated consists of but two items, a favorable performance report on the accused and his unsworn statement made in mitigation. The latter is somewhat negative for, in addition to setting out his civilian and military background, the statement makes clear that the accused was once before tried by court-martial, convicted, and then sent to Amarillo Air Force Base, Texas, for rehabilitation. Later he served a six-month probationary period at McConnell Air Force Base, Kansas. The instant proceedings point out how short-lived his rehabilitation was. In short, I do not believe that the president’s failure to draw attention of the court-martial to this so-called mitigating evidence harmed the accused in any fashion, for had the court been so informed, I do not believe they would have lessened the punishment in favor of the accused. Accordingly, I would affirm the decision of the board of review.