dissenting:
I agree with and have subscribed to the dissent of the Chief Judge but must give vent to stronger feelings.
The result reached by the majority (affirmance, which I of course also reach) does not follow from the premises in either instance of supposed errors.
With the generality that misleading of the Supervisory Authority by the SJA review or the fair risk of such a misleading constitutes reversible error there is no need to argue. But on the question of advising that the military judge had found multiplicity for sentencing purposes in certain specifications the majority finds but one decision to cite (United States v. Westcott) and rejects it. It sees that decision as standing to some “extent” for the principle that failure to give such advice is not prejudicial error. The decision there acknowledged “error” (citing no precedent), but held it nonprejudicial in light of the sentence awarded in the circumstances.
The majority does not look to the comparable circumstances in this case, e. g., that the confinement ordered was only one-third of that authorized for the court, which was itself only one-twelfth of the total maximum for the non-duplicative offenses proven. Such recognition lines the circumstances of this case up with those faced by the Army court. Consistently, then, to reach its end, the majority rejects out of hand the principle of that decision and holds that every such omission is prejudicial error.
I know of no law, regulation, or decision which declares that a military judge sitting alone must instruct himself in open court on matters of multiplicity for sentence purposes. The action is surplusage (although possibly useful in some cases) and I instinctively cannot regard as error a failure to point out a meaningless surplusage to a supervisory authority. Since the majority states its view only as “opinion” and chooses to offer no precedent nor rationale of its own, I decline to attempt to curb my instinct in order to explore possible grounds for agreement.
*1280With respect to the “recommendation,” the majority notes that it could not have been addressed to the Convening Authority, but that the military judge had specified that the recommendation should be carried out before the Supervisory Authority should act. It may be carping to say so, but the recommendation is vague. It is expressed in the passive. It may be addressed to the SJA, to be accomplished before he prepares his review; it may be addressed to the Supervisory Authority, to be accomplished after the review has been received. At any rate, it is so conditional as to be only remotely a recommendation at all. It assumes that others need instruction as to how the system should operate and it is purely gratuitous. Rather than chastisement of the SJA for a presumed failure to pass on gratuitous advice by calling it error, deterrence of superfluous comments by military judges should be sought.
While the Chief Judge has succinctly disposed of the majority’s problem with the Goode decision, I can only wonder at an opinion which finds two prejudicial errors but finds no relief appropriate because of an unpalatable supposedly superimposed rule of waiver, without seeking assuagement in exploration of inadequacy of counsel.