dissenting:
I am constrained to join with Judge O’Donnell because I believe the United States Court of Military Appeals in United States v. Courtney, 1 M.J. 438 (July 2,1976), established a rule to the effect that in a trial by general court-martial for a drug offense the existence of two statutes (Articles 92 and 134, UCMJ) which permit punishment of the same conduct with different maximum periods of confinement, gives rise to a presumption of arbitrariness in the exercise of the choice between those statutes; and such presumptively arbitrary action is a denial of equal protection. The Courtney decision, however, would permit the Government to rebut the presumption by a proper showing that appropriate standards were used in choosing between Article 134 and Article 92.
I also believe the Court of Military Appeals has, by the use of a cryptic remand order and by denial of the Government’s request for reconsideration, foreclosed further review of the issues of burden of proof, waiver and retroactivity.1 Courtney is not *996a per se rule but our discretion is extremely limited. See Henry v. City of Rock Hill, 376 U.S. 776, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964). We are permitted only to determine whether the Government has shown that standards were used in choosing between Articles 134 and 92. If we find no showing that standards were used, the presumption of arbitrariness is unrebutted. Our next task would then be to determine whether the appellant was prejudiced thereby.2
In searching the record for standards, I can find no showing by the Government that any were used in choosing between Articles 134 and 92 for charging the appellant. I do not agree with the majority that a post-trial finding by this Court that all drug offenses at Fort Dix were charged under Article 134 or a recitation of facts sufficient to justify the choice of the more severe article equates to a showing that appropriate standards were employed. Accordingly, I would proceed to the second step of our review of the case which is the determination of prejudice.
I agree with Judge O’Donnell in determining that prejudice exists and that the sentence should be reassessed.
. To the extent Judge O’Donnell purports to make a determination of the questions of burden of proof, waiver and retroactivity, I must disagree. I do not believe we have been given that discretion. However, so that my position will be clear, I note my disagreement with the conclusions he draws as to those questions. First, I do not believe McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), and Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), lend support to the proposition that the Government has the burden of proving that one of two valid, non-discriminatory statutes (Articles 134 and 92) was not arbitrarily chosen for prosecution purposes. Those cases are such special categories that they cannot be used to generalize a rule for broad application. Skinner involved sterilization as punishment for habitual offenders and McLaughlin involved classification based on race. This case, involving nothing of an especially repugnant nature should fall within the general category wherein the accused has the burden of proving discrimination in treatment. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973).
Second, as to the question of waiver, the Supreme Court of the United States declined to address the precise question in Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), because it had not been raised below. I believe such restraint is significant here. This is not the type of case in which the military judge has an affirmative duty to intercede to insure that the trial is “conducted in accordance with sound legal principles” as in United States v. Heflin, 23 U.S.C.M.A. 505, 50 C.M.R. 644, 1 M.J. 131 (1975), but rather is a case under the passive waiver concept wherein “actions of trial defense counsel . . *996leave appellate tribunals with insufficient factual development of an issue necessary to resolve a question of law raised on appeal. . . ” United States v. Graves, 23 U.S.C.M.A. 434, 437, 50 C.M.R. 393, 396, 1 M.J. 50, 53 (1975). Finding no manifest miscarriage of justice, I would impose waiver on this appellant for his failure to raise the issue below.
Finally, as to the question of retroactivity, had we the discretion to make that determination here, I would find the rule in Courtney to be completely prospective. First, as Judge O’Donnell points out, the Government acted reasonably and in good faith in relying on the prior case law in charging the appellant. Second, and partially contrary to Judge O’Donnell’s position, I believe the administrative burden from rehearings in the guilty plea cases would be so great as to weigh against even limited retroactivity. Third, I find the purpose of the rule in Courtney, the equalization of the maximum confinement imposable, to be of relatively less significance than the purpose of the rules in which retroactivity has been granted by the Supreme Court, e. g., right to counsel at trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)), made retroactive by Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41, (1963); reasonable doubt standard in juvenile proceedings (In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)), made retroactive by Ivan V. v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972); double jeopardy rule binding on the states (Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)), made retroactive by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
The purpose behind the Courtney rule is of the same magnitude as other rules which were not made retroactive, e. g., the right to a jury trial made applicable to the states (Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)), not retroactive per DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968); systematic exclusion of females from juries violates Sixth Amendment (Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)), not retroactive per Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L. Ed.2d 790 (1975).
. As the underlying error is one of constitutional dimensions (denial of equal protection), the lack of prejudice must appear beyond a reasonable doubt. United States v. Moore, 24 U.S.C. M. A. 217, 51 C.M.R. 514, 1 M.J. 390 (1976).