(concurring in part and dissenting in part):
I am in only partial agreement with my brothers. At the outset, I agree that the staff judge advocate improperly advised the convening authority as to the standard of proof necessary for approving the court’s findings of guilty of Specifications 1 and 4 of Charge III, and I also agree with my brother LeTarte that it is not unlikely that the staff judge advocate applied the same erroneous standard to Specifications 2 and 3. Where I disagree with both of my brothers is with respect to the application of the decision in United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975) to the instant case.
In Goode, the Court stated:
Because of these continual and often repeated claims of error, plus the delay in determining their validity and correction, we deem it appropriate and expedient to take corrective action. Accordingly, it is ordered that on and after May 15,1975, a copy of the written review required by Article 61 or 65(b), UCMJ, ... be served on counsel for the accused with an opportunity to correct or challenge any matter he deems erroneous, inadequate or misleading, or on which he otherwise wishes to comment. Proof of such service, together with any such correction, challenge or comment which counsel may make, shall be made a part of the record *727of proceedings. The failure of counsel for the accused to take advantage of this opportunity within 5 days of said service upon him will normally be deemed a waiver of any error in the review.
50 C.M.R. at page 4, 1 M.J. at page 6.
I believe that the thrust of Goode is to recognize the defense counsel as an integrated part of the court-martial review process with the responsibility of assuring that all significant errors or deficiencies in the staff judge advocate’s post-trial review are identified before the convening authority first acts upon the record of trial.1 As Judge Ferguson stated in United States v. Wilson, 9 U.S.C.M.A. 223, 26 C.M.R. 3, 6 (1958):
[W]e cannot escape the conclusion that the post-trial review and the action of the convening authority together represent an integral first step in an accused’s climb up the appellate ladder. This step is oftentimes the most critical of all for an accused because of the convening authority’s broad powers which are not enjoyed by boards of review or even by this Court. It is while the case is at the convening authority level that the accused stands the greatest chance of being relieved from the consequences of a harsh finding or a severe sentence.
To me, it would be enigmatic on the one hand to compel the defense counsel, upon penalty of waiver, to assert his objection at trial to matters for which an accused is entitled to protection under the Constitution and military law 2 and, on the other, to allow defense counsel, without fear of waiver, to discover error in the post-trial review and remain silent in the hope of favorable appellate action. Such favorable action usually consists of returning the record for a new review and action, and, in my view, this is exactly the result that Goode was intended to eliminate.
I wish to emphasize, however, that I would extend the Goode doctrine only to errors or deficiencies in the review itself which do not reach the level of substantial injustice. See UCMJ, Article 59, 10 U.S.C. § 859. Clearly, Goode could not be employed to effect a waiver of a substantial error occurring at trial simply because it was not detected or discussed by the reviewer, or was justified by faulty legal reasoning. In such event, I would echo the words of former Chief Judge Quinn that “whenever, to do substantial justice, it becomes necessary to notice an error, then objection or no objection, . . . that error will not be noted.” United States v. Fisher, 4 U.S.C.M.A. 152, 15 C.M.R. 152, 156 (1954). What I read Goode to mean is that those errors generated by the reviewer in reviewing the case must be raised by the defense counsel for the benefit of the convening authority, or they will be waived. I would not apply Goode beyond this, for we will not let the dogma of consistency impede the exercise of our jurisdiction where the substantial rights of the accused may be imperiled.
Unfortunately, the correct interpretation of Goode has not yet been delineated by the Court of Military Appeals. Until that time, I can only espouse my own opinion, which is at divergence with those of my brothers.3
I would hold, therefore, that the defense counsel, by not challenging the obviously *728erroneous standard used by the staff judge advocate, has waived the issue. Consequently, although I disagree that sentence modification is necessary in this case, I join in affirming the findings of guilty as modified by Judge Orser.
. This interpretation permits me to disregard the disclaimer statement of defense counsel in this case that the defense can be required “to cure any errors or defects in the Staff Judge Advocate’s Review.” If conceded, such a position would render the Goode mandate meaningless.
. See, for example, the following cases in which the waiver doctrine was applied:
United States v. Hendrix, 21 U.S.C.M.A. 412, 45 C.M.R. 186 (1972) (failure to raise illegal search and seizure issue); United States v. Sloan, 22 U.S.C.M.A. 587, 48 C.M.R. 211 (1974) (failure to raise speedy trial issue).
. I note in passing that my views above are supported by the Report of the Task Force on the Administration of Military Justice in the Armed Forces, wherein it was recommended that the review of the convening authority be limited to clemency considerations, “and, except in capital cases, [to] leave to the trial defense counsel the responsibility of submitting an assignment of errors — an appeal — to an appropriate Court of Military Review.” Report, page 94 (DoD 30 November 1972).