dissenting:
I disagree with the conclusions of prejudicial error stated in the Opinion of the Court.
We are dealing here with the case of a Viet Nam veteran who, following the breakup of his marriage, enlisted in the Coast Guard, more than three years after his Honorable Discharge from the U. S. Army. He shortly became convinced that he had made a mistake in returning to military life, and he formed a determination to get out.
He committed offenses which four times resulted in nonjudicial punishment. Finally the instant offenses led to the present court-martial. The accused’s own testimony, as well as the statement of his counsel, show that the motive for the commission of all his offenses was the determination to be separated from the service.
Prior to sentencing him, the judge addressed the accused; in effect he told him that if he, Watkins, should have a change of heart and decide that he wanted to remain in the Coast Guard, then he, the judge, would recommend his restoration to duty. Plainly, this was only a conditional recommendation against the bad conduct discharge. Cf. United States v. Massingill, 21 U.S.C.M.A. 428, 45 C.M.R. 202 (1972).
I cannot agree that the district legal officer’s review was prejudicially erroneous in not drawing the District "Commander’s attention to the judge’s presentence remarks. On the facts here it was not error to omit the comment as to ascertaining the accused’s “rehabilitation potential” and the conditional recommendation which followed it. Cf. United States v. Edwards, 23 U.S.C. M.A. 202, 48 C.M.R. 954 (1974).
In Massingill, supra, the Court repeated the reasoning behind many of its decisions involving reviews by the staff legal officer:
Obviously a convening authority is an accused’s best hope for clemency . Consequently, this Court’s opinions have required that a staff judge advocate should inform the convening authority of a recommendation by a person whose opinion is likely to be influential against elimination of an accused from the service. (emphasis supplied)
In United States v. Arnold, 21 U.S.C.M.A. 151, 44 C.M.R. 205 (1972) the review omitted to mention that the judge recommended giving “serious consideration” to suspending the BCD. The accused had testified that he wanted to “go back to soldiering” and earn an honorable discharge; moreover “the central point of dispute” in the arguments was whether a BCD should be im*1279posed. The omission was ruled prejudicial error; yet the Court’s opinion cautioned:
No template of prejudice can be constructed for all cases.
Where the accused resists a bad conduct discharge, it is now settled that a failure to mention the trial judge’s recommendation to consider suspending the BCD, constitutes prejudicial error and requires a new review and action. United States v. Lee, 23 U.S.C. M.A. 303, 49 C.M.R. 552; United States v. Blake, 23 U.S.C.M.A. 362, 49 C.M.R. 821 (1975).
But the underlying situation in the instant case is diametrically different from that in cases like Arnold, Blake and Lee. I can see no likelihood that information as to the judge’s remarks here might have influenced the district commander against approving the bad conduct discharge that Watkins wanted. To have suspended the BCD in this case would not have been clemency — it would have been cruelty.
I disagree also with the conclusion that it was prejudicial error not to inform the convening authority that the judge ruled (favorably to the accused) that three of the four offenses were multiplicious for sentencing purposes. The conclusion in no way follows from the reasoning in any of the relevant Court of Military Appeals cases.
Lastly I disagree with the interpretation placed on United States v. Goode, 23 U.S.C. M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975). If there are indeed prejudicial errors in a staff legal officer’s review, a Court of Military Review is not barred from remedial action .by the defense counsel’s failure to object in five days. There is no passive waiver here. See United States v. Graves, 23 U.S.C.M.A. 437, 50 C.M.R. 393, 1 M.J. 50 (1975). If the majority thinks there are prejudicial errors, it has the duty to take corrective action, even though defense counsel did not object. Cf. United States v. Morales, 23 U.S.C.M.A. 508, 50 C.M.R. 647, 1 M.J. 87 (1975). (Of course defense counsel did not object to the review herein because there was .nothing to object to.)
I would affirm the sentence, but only because the record is free from error.
Judge MAGUIRE joins in this dissent.