(concurring in part and dissenting in part):
I concur in part and dissent in part.
While I agree with my brothers’ ultimate disposition of the accused’s claim that he was denied a speedy trial, I disassociate myself from their reasoning. Since the issue was not raised at trial, the record does not disclose why the accused was initially confined for thirty-five days and then released without charges being pre*229ferred.1 Nor is there any explanation for the Government’s delay in preferring charges for a simple absence-without-leave offense, until three hundred sixty-three days after the accused’s return to military control. To reason, as my brothers do, that the failure to raise the issue at trial resulted from a recognition that the delay was perhaps beneficial to the accused, is sheer speculation in which we should not indulge. Courts cannot decide eases on mere speculation. They deal in facts and law.
I dissent to that portion of the principal opinion which holds that the accused was not prejudiced by the law officer’s failure to include in his voting instructions on sentence that the court should begin to vote on proposed sentences “beginning with the lightest,” as required by paragraph 76b (2) of the Manuals for Courts-Martial, United States, 1951, and 1969 (Revised edition). As a majority of this Court said in United States v Johnson, 18 USCMA 436, 437, 40 CMR 148 (1969):
“The voting procedure, prescribed in paragraph 76b (2) of the Manual that the lightest proposed sentence be voted on first, is, in our opinion, more than a mere technicality. It is, essentially, a part of military due process. Winthrop, supra, and the Manual have long recognized this presentencing procedure as a regular part of the voting process. See discussion in United States v Blair, 24 CMR 869, 871-872. Whether or not it is followed may well have a substantial effect upon the sentence adjudged against an individual accused. It is a valuable right accorded an accused by directive of the President (United States v Smith, supra) and should not be lightly regarded. Cf. United States v Turner, 9 USCMA 124, 25 CMR 386; United States v Hutton, 14 USCMA 366, 34 CMR 146; United States v Turner, 16 USCMA 80, 36 CMR 236; United States v Koleff, 16 USCMA 268, 36 CMR 424; United States v Yocom, 17 USCMA 270, 38 CMR 68; United States v Wheeler, 17 USCMA 274, 38 CMR 72.
“A court, uninstructed as to this procedure, may well believe that the voting could properly commence with consideration of the most severe proposed sentence. Since we have no way of ascertaining what took place, the voting having been conducted in secret, and, inasmuch as, in our opinion, the matter concerned a substantial right of the accused, the doctrine of plain error may be properly invoked. United States v Stephen, 15 USCMA 314, 35 CMR 286. Reversal as to sentence is required.”
See also United States v Conner, 19 USCMA 74, 41 CMR 74 (1969); United States v Dues, 19 USCMA 130, 41 CMR 130 (1969); United States v McDowell, 19 USCMA 151, 41 CMR 151 (1969); United States v Newton, 18 USCMA 562, 40 CMR 274 (1969).
The majority, in this case, distinguish these holdings on the ground that they do not believe this accused suffered a deprivation of a substantial right justifying invocation of the plain error rule because his sentence was considerably less than that which could have been imposed by the court.
Such a test is, in my view, in direct contradiction of the Johnson holding that the voting procedure is “essentially, a part of military due process.” Essential means indispensable. Webster’s Third New International Dictionary, Unabridged, 1961. And where a denial of due process of law is concerned there can be no test as to prejudice. See United States v Clay, 1 USCMA 74, 1 CMR 74 (1951). The rights and privileges of military due process are based on the law as enacted by Congress. Paragraph 76b (2), Manual, supra, was prescribed by the President pursuant to power specifically delegated to him under Article 36(a) of the Code, supra, and has the force of law. United States v Smith, 13 USCMA 105, 32 CMR 105 (1962). While an accused may waive *230somé of the safeguards granted him by Congress (United States v Lucas, 1 USCMA 19, 1 CMR 19 (1951)), the court cannot waive them for him. United States v Clay, supra; see also Bruno v United States, 308 US 287, 293-294, 84 L Ed 257, 60 S Ct 198 (1939).
But even were I to concede that the error in this case could be tested for prejudice, I cannot agree that under the circumstances of this case, the accused has not suffered a deprivation of a substantial right justifying the invocation of the plain error rule. See United States v Stephen, 15 USCMA 314, 35 CMR 286 (1965).
For an unauthorized absence that exceeded a year’s duration, the accused was sentenced to only a bad-conduct discharge and reduction to the pay grade of E-3. In the more than a year between his return and his trial the accused was on duty, performed well, and assisted in the preparation of a supply manual for which he was commended by a superior officer. His rehabilitation was apparent. Had the court been properly instructed, they may well have decided that his value to the service was such that retention was in order. Under such circumstances we should not speculate as to what sentence the court may have returned. My brothers state that, “For an unauthorized absence that exceeded a year’s duration, a lesser sentence, even if preceded by complete instructions, can hardly be conceived.” Such a view is wholly unwarranted, since it involves an intrusion into an area of judgment that is exclusively reserved for the members of the court. At that level, they, and they alone, are the arbiters of what is an appropriate sentence.
I would reverse the decision of the board of review as to sentence and order a rehearing thereon.
See Article 10, Uniform Code of Military Justice, 10 USC § 810.