(dissenting):
I dissent.
In questioning the accused relative to his knowledge and understanding of his entitlement to the advice and assistance of counsel, in accordance with the provisions of Article 38(b), Uniform Code of Military Justice, 10 USC § 838 (United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969)), the military judge failed to determine whether Baker was aware that detailed military counsel would act as associate counsel in the event Baker desired to be represented by civilian or military counsel of his own selection and wanted detailed counsel to remain. For the reasons set forth in my separate opinion, on this issue, in United States v Turner, 20 USCMA 167, 43 CMR 7 (1970), I believe this was error prejudicial to- the substantial rights of the accused. United States v Fortier, 19 USCMA 149, 41 CMR 149 (1969); United States v Scott, 19 USCMA 383, 41 CMR 383 (1970); United States v Carter, 20 USCMA 146, 42 CMR 338 (1970); United States v Bowman, 20 USCMA 119, 42 CMR 311 (1970); United States v Goodin, 20 USCMA 160, 42 CMR 352 (1970).
I also believe it was prejudicially erroneous for the military judge to consider evidence of punishment under Article 15, Code, supra, 10 USC § 815, since the charged offenses occurred prior to August 1, 1969, the effective date of paragraph 75d, Manual for Courts-Martial, United States, 1969 (Revised edition). United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970). My brothers’ determination that the record of prior punishment could not have played a part in the determination of the sentence in this case is, in my opinion, wholly unwarranted. Cf. United States v Walker, 19 USCMA 472, 42 CMR 74 (1970); United States v Martin, 19 USCMA 486, 42 CMR 88 (1970); United States v Worrell, 19 USCMA 487, 42 CMR 89 (1970); United States v Iacono, 19 USCMA 490, 42 CMR 92 (1970); United States v Duron, 19 USCMA 563, 42 CMR 165 (1970). The use of the inadmissible Article 15 punishment, in the case at bar, is squarely in point with that which pertained in United States v Duron, supra, where Judge *177Darden, writing for a unanimous Court, declared, at page 563:
. . This evidence constituted the whole of prosecution’s evidence against the appellant during sentencing. No evidence was offered of prior convictions. Under these circumstances we cannot be certain that the court was uninfluenced in assessing sentence by this inadmissible evidence. We believe that such consideration presents a fair risk of prejudice, requiring that the sentence be re-examined. United States v Martin, 19 USCMA 486, 42 CMR 88 (1970); United States v Iacono, 19 USCMA 490, 42 CMR 92 (1970); and United States v Johnson, supra.”
I would reverse the decision of the Court of Military Review and direct that a rehearing may be ordered.