(dissenting):
The requirement of paragraph 83a, Manual for Courts-Martial, United States, 1951, has been applied in a manner that permits brief unrecorded conferences between the law officer and counsel if these conferences are designated as “side-bar” or “bench” conferences. In United States v Ransom, 4 USCMA 195, 203, 15 CMR 195, this Court declared:
*93“A conference of this nature is entirely unlike an unrecorded conference between the law officer and the court, out of the presence of the accused. United States v Miller, 2 USCMA 272, 8 CMR 72. Neither does it in any way destroy the completeness of the record of the actual court proceedings against the accused. See: United States v Nelson, 3 USCMA 482, 13 CMR 38.”
Apparently the difference here is that the conference occurred within the hearing of the members of the court. But counsel for the accused was present. I would trust him to object to or to call to the attention of appellate authorities anything that was said or done in such a conference constituting error that “materially prejudices the substantial rights of the accused,” as the statutory standard required. Article 59(a), Uniform Code of Military Justice, 10 USC § 859.
But if the decision is to be reversed I would permit a rehearing. I am unwilling to decide that because of what I consider a technical error, a member of the armed forces with three unauthorized absences covering a period of one hundred sixty days may not be awarded a punitive discharge the court-martial and other appellate authorities thought he deserved.