concurring in the result:
I am in disagreement with the majority opinion to the extent that it implies that the ultimate responsibility for the preparation of a review that is neither erroneous, inadequate nor misleading is transferred from the staff judge advocate to the defense counsel. Historically, that obligation has rested squarely on the shoulders of the staff judge advocate and the decision of United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975), was not designed to free him from that responsibility.
Similarly, I disagree with the view that the defense counsel by his failure to challenge a review waives all errors save those that would result in a manifest miscarriage of justice. In the absence of an affirmative defense waiver, I believe curative action should be taken on appeal whenever a review has materially prejudiced the substantial rights of an appellant. See Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a).
I concur with the result because the error, although not waived, did not prejudice the appellant.
MOUNTS, Judge with whom Senior Judge CARNE and Judge MITCHELL join, dissenting in part and concurring in part:In United States v. Goode, supra, the United States Court of Military Appeals stated the following rule as to waiver:
“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.” (Emphasis added; 23 U.S.C. M.A. at page 370, 50 C.M.R. at page 4, 1 M.J. at page 6.)
The majority opinion emphasizes the “any error” part of the rule without fully discussing the limiting factor of the word “normally.”1 It appears by inference that *540this limitation is discussed in footnote 10, wherein it is stated in part:
“It should be noted that the application of this waiver provision would, of course, be subject to the same limitations, e. g., manifest miscarriage of justice, as any other waiver rule. . . . ”
As noted the manifest miscarriage of justice limitation is inherent in any other waiver rule and it would therefore not be necessary to add the limiting word “normally” if a manifest miscarriage of justice were contemplated as the only limitation to the rule. We find that a greater limitation is mandated by the use of the word normally.
In addition, the majority opinion notes the following:
“The Court appropriately recognizes that the trial defense counsel shares with the staff judge advocate the duty to insure that the convening authority receives the most accurate information possible to aid him in the exercise of his broad prerogatives relative to findings and, more particularly, the sentence.”
We would go further and state that the staff judge advocate has the primary duty in certain areas to insure that the convening authority is properly informed and therein lies the inherent problem with the majority opinion. If the defense counsel’s failure to detect any and all errors is treated as a complete waiver, the function of the defense counsel is altered to the status of proofreader for the staff judge advocate. The United States Court of Military Appeals in Goode did not intend to shift all the burden to the defense. The staff judge advocate was not relieved of his legal obligation to properly advise the convening authority and provide him with adequate guideposts to determine an appropriate disposition of the case.2 The United States Court of Military Appeals in Goode was dealing with adverse matter from outside the record which the accused had no opportunity to rebut. Thus to the extent that the rule of the Court as to “any errors” went beyond errors from matter outside the record, the rule is based on dicta and should be strictly construed. Combining these factors; the limitation provided by the word “normally,” a strict construction of “any errors” and the reasonable result of keeping the primary duty for accuracy of the review with the staff judge advocate, we hold that the majority opinion is too all inclusive in its concept of waiver.
When adverse comments are made from outside the record, the trial defense counsel is in a unique position, due to his attorney-client relationship with the accused, to protect the accused’s interests by aiding the accused to rebut or explain the adverse matter. It is wholly appropriate to invoke the doctrine of waiver when a defense counsel has an opportunity to rebut information based on his attorney-client relationship and decides to take no action. This is a discretionary act by the defense counsel based on his legal skills while privy to the *541accused’s needs and desires. Therefore, the defense counsel should be held responsible to insure accuracy in the review not only for adverse comments outside the record but for any information in the review the accuracy of which can be substantially enhanced by the defense counsel’s attorney-client relationship with the accused. Such information pertaining to the sentence portion of the review would be; the personnel data, the summary of the post-trial interview, appropriateness of sentence, and any other matters dealing with clemency, such as the civilian and military background of the accused. In addition, there are certain other matters of the review dealing with the legal analysis of the findings. These are; summarization of the evidence, discussion of the elements of the offense, affirmative defenses and trial procedures. In our view the defense counsel should also be responsible for the accurate recital of certain of these matters which fall within his special province because of the attorney-client relationship with the accused. These certain matters are; proper characterization of affirmative defenses and accuracy of that portion of the summary evidence which deals with defense evidence. These then would constitute the “any errors” which would be waived in both the findings and sentence portion of the review. The accuracy of the remaining parts of the review, particularly the requirements placed upon the staff judge advocate by paragraph 85b, MCM 1969 (Rev.),3 would properly remain with the staff judge advocate, except as modified herein. Thus in the case sub judice we would find non-waivable error in the misstatement of the maximum punishment since the accuracy of that portion of the review remains the responsibility of the staff judge advocate.
Due to the well-recognized jurisdictional limits on sentencing of a special court-martial and the convening authority’s apparent knowledge of these very basic concepts, we would find no prejudice despite the prior history of curative actions taken by this Court in similar cases.4 A convening authority should be presumed to know the maximum limits for punishment of a special courts-martial and the inadvertent addition of the maximum punishment for a general courts-martial should in no way prejudice the accused. We agree with the remaining discussion of the alleged errors by the majority.
. We notice in the recent decision of United States v. Cree, 24 U.S.C.M.A. 18, 51 C.M.R. 68, 1 M.J. 210 (1975), a possible innuendo that the Court of Military Appeals does not intend Goode to cut the broad swath envisioned by the majority opinion. In Cree, the staff judge advocate’s post-trial review included a potentially damaging summary of the evidence and an enumeration of the elements of the offense of which the accused was acquitted, contrary to *540the provisions of paragraph 86b (2) of the Manual for Courts-Martial. Although two months previous to the Goode effective date of 15 May 1975, the trial defense counsel was served with the review pursuant to local standard operating procedure. He made no objections. On appeal, however, appellate defense counsel made the error in the review the second of two assignments of error. The Court of Military Review affirmed without comment. After ignoring the first assignment of error, the Court of Military Appeals granted review on this very issue and two judges wrote separate affirming opinions. Judge Ferguson, however, wrote a scathing dissent, seeing clear prejudice to the defendant and urging reversal despite service of the review on defense counsel. In spite of the freshness of the Goode opinion, nowhere was the defense waiver doctrine mentioned in Cree. Only Judge Cook mentioned the Goode requirement of service at all, and then only in a footnote. See 51 C.M.R. at 69, 1 M.J. at 211. Granting review on this particular assignment of error, deciding it so soon after Goode, and yet omitting an appropriate opportunity to at least pay lip-service to the waiver doctrine attracts a second glance. Even though no legal requirement demanded the mention of the Goode waiver rule, we wonder whether a Court of Military Appeals as committed to a new strict waiver doctrine as the majority perceives it to be would pass up the unique opportunity to either clarify by dicta, their waiver rule or simply deny certiorari.
. United States v. Smith, 23 U.S.C.M.A. 98, 48 C.M.R. 659 (1974).
. It is noted that the United States Air Force Court of Military Review in the case of United States v. Cummins, 1 M.J. 851 (A.F.C.M.R. 28 April 1976), relied upon paragraph 85b, MCM 1969 (Rev.), as the test for determining waiver.
. United States v. Bruce, 46 C.M.R. 968 (A.C. M.R.1972).