(dissenting):
I dissent.
The issue before this Court is whether the military judge erred to the prejudice of the accused by receiving in evidence, during the proceedings on sentence, Prosecution Exhibits 3, 4, and 5. While holding that the military judge erred in admitting these exhibits (United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970)), my brothers have found no prejudice in this case. United States v Young, 19 USCMA 481, 42 CMR 83 (1970); United States v Guathier, 19 USCMA 482, 42 CMR 84 (1970); United States v Tipton, 19 USCMA 483, 42 CMR 85 (1970).
Evidence of prior nonjudicial punishment, as reflected in this case by Exhibits 3 and 4, was held to be admissible (paragraph 75d, Manual for Courts-Martial, United States, 1969 (Revised edition)) by a majority of this Court in United States v Johnson, supra, for cases tried after August 1, 1969,1 only if the charged offenses were committed after that date. Where the charged offenses were committed prior to the effective date of the revised edition of the 1969 Manual, as here, evidence of prior Article 15 punishment is inadmissible for sentence purposes, although the error could at times be found not to prejudice the accused. Compare United States v Young, United States v Gauthier, and United States v Tipton, all supra, with United States v Martin, 19 USCMA 486, 42 CMR 88 (1970); United States v Worrell, 19 USCMA 487, 42 CMR 89 (1970); and United States v Johnson, supra. I disagreed with the holding in Johnson that the Article 15 records were admissible, on the ground that paragraph 75d, Manual, supra, was opposed to the congressional intent manifested during the debate preceding the 1962 amendment to Article 15. Being inconsistent with the codal mandate, the Manual provision is without efficacy. United States v Villasenor, 6 USCMA 3, 19 CMR 129 (1955). Since that time, however, I have concurred in United States v Duron, 19 USCMA 563, 42 CMR 165 (1970), which was based on Johnson because that holding has become the law of this Court.
Prosecution Exhibit 5, the Enlisted Qualification Record (DA Form 20) of the accused, presents an even more complex problem. Like Exhibits 3 and 4, its admissibility, based on paragraph 75d of the Manual, initially depends on the date of the commission of the alleged offenses. For that reason alone it was inadmissible in this case. United States v Johnson, supra.
My brothers take the position that since an accused is afforded an opportunity in mitigation to present favorable information from his service record, the prosecution’s use of unfavorable material from the same source does not make the information any less relevant; they reject the contention of appellate defense counsel that the new paragraph 75d of the Manual violates the rule of relevancy.
The question is academic insofar as this case is concerned for, as the majority also holds, Prosecution Exhibit 5 was inadmissible in evidence. The inclusion therein of a notation that the accused had been confined earlier that year for eight days in the city jail, El Paso, Texas, for possession of alcoholic beverages as a minor and was fined $105.00, could only have had, in *41my opinion, a deleterious effect on the military judge’s determination of a just and adequate sentence in this case. When coupled with the error regarding Prosecution Exhibits 3 and 4, the impact is obvious and prejudice is apparent.
Since my brothers have affirmed the validity of paragraph 75d,2 insofar as it permits the Secretary concerned to promulgate regulations permitting trial counsel, prior to sentencing, to obtain and present to the military judge any personnel records of the accused or copies or summaries thereof, a few personal comments are in order.
Army Regulation 27-10, paragraph 2-206(1), change 3, dated May 27, 1969, effective August 1, 1969, which was promulgated by the Secretary under the authority of paragraph 75d, Manual, supra, provides for the use, in the sentencing portion of the trial, of DA Form 20, Enlisted Qualification Record, of an accused. This form is four pages in length and contains 48 separate items, including one simply labeled “Remarks.”3 It was in this latter section that the civilian arrest record of this accused was inserted. The record also contains such diverse items as race, religion, aptitude test scores, education, and avocations, in addition to the expected items relating directly to one’s military career. The entries are in many instances abbreviated and not understandable to the ordinary layman.
While I do not deny the Presidential authority to promulgate rules for practice and procedure before courts-martial (Article 36, Uniform Code of Military Justice, 10 USC § 836), I believe that the manner in which it was accomplished by the Secretary of the Army (AR 27-10, supra) exceeds the authority and intent of paragraph 75d. The Manual limits the personnel records introduced to those “which reflect the past conduct and performance of the accused,” whether the hearing be before a court with members or one presided over by a military judge. It is patently obvious from the abbreviated recitation above, of some of the contents of DA Form 20, that much of the material therein is simply not relevant or material to the question to be decided — an appropriate sentence for the particular accused. Also, it is not unlikely that on occasion the “Remarks” section will reflect the commission of an offense more than six years prior to time of trial. In such an event, the admission of this evidence would be in contravention of paragraph 75b (2), Manual, supra. Placing the burden upon the accused to object to inadmissible data contained in the form is not only improper but unreasonable.
Paragraph 137, Manual, supra, provides in part:
*42“Evidence to be admissible (competent) must primarily be relevant. Evidence is not relevant, as that term is used in this manual, when the fact which it tends to prove is not part of any issue in the case. Also, evidence is not relevant when, though the fact intended to be proved thereby is part of an issue in the case, the evidence itself is too remote to have any appreciable probative value for that purpose.”
DA Form 20 is an official record. But that does not automatically make the whole of the record admissible. As this Court stated in United States v Schaible, 11 USCMA 107, 110, 111, 28 CMR 331 (1960):
“. . . True it is that we have held an official record is admissible in evidence when it is made in accordance with regulations by an officer charged with the duty of preparing the same. United States v Parlier, 1 USCMA 433, 4 CMR 25 [1952]. However, we have also held that merely because a document is official does not render everything recorded therein admissible. United States v Hall, 10 USCMA 136, 27 CMR 210 [1959]. Materiality, competency, and relevancy are essential before testimony should be placed before members of the court.”
In my opinion, utilization of the whole of DA Form 20 in the sentencing portion of the trial, as directed by the Secretary of the Army, is beyond the scope of the authority provided for in paragraph 75d of the Manual, too unreasonable to be enforceable, and in derogation of the rules of relevancy.
Since I believe that the military judge prejudicially erred in admitting Prosecution Exhibits 3, 4, and 5 in evidence, I would reverse the decision of the United States Army Court of Military Review as to sentence and direct that a rehearing on sentence may be ordered.
Trial of this accused was held on August 29, 1969.
“d. Optional matter presented when court-martial constituted with military judge. Under regulations of the Secretary concerned the trial counsel may, prior to sentencing, obtain and present to the military judge any personnel records of the accused or copies or summaries thereof. Summaries of such records will be prepared and authenticated by the custodian thereof as provided in appendix 8g. Personnel records of the accused include all those records made or maintained in accordance with departmental regulations which reflect the past conduct and performance of the accused. If the accused objects to the data as being inaccurate or incomplete in a specified material particular, or as containing certain specified objectionable matter, the military judge shall determine the matter. Objections not asserted will be regarded as waived. The accused may submit in rebuttal any matter which reflects on his past conduct and performance. In cases where members determine sentence, the military judge may admit for their consideration any information from these records which reflects the past conduct and performance of the accused.”
Defense counsel in their brief advised that the contents of DA Form 20 are governed by paragraph 9-14 to 9-61, Army Regulation 600-200, change 33, September 12, 1969, pages 9-6 to 9-33. The pertinent regulation devotes 27 pages to the description of the type of information which may be entered under the 48 items of that form.