dissenting:
While I agree with the majority that, based upon the record before this court, the findings and sentence are correct, it is my opinion that the error discussed below requires that this record be returned to the supervisory authority for compliance with the Court of Military Appeals mandate in United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1,1 M.J. 3 (1975).
The convening authority took his action in this case on 21 November 1975 and forwarded the record of trial to the supervisory authority for review and action pursuant to Article 65(b), UCMJ. The district legal officer submitted his post-trial review and advice to the supervisory authority by memorandum dated 29 December 1975. The Action of the Supervisory Authority approving the findings and sentence was dated 31 December 1975, only two days after the date on the post-trial review and advice of the district legal officer. The defendant received a copy of the record of trial on 23 January 1976. The record is totally silent as to any delivery to the defense counsel of a copy of the district legal officer’s post-trial review and advice.
The Court of Military Appeals, in Goode, supra, stated:
“[I]t is ordered that on and after May 15, 1975, a copy of the written review required by Article 61 or 65(b), 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 of 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.” (Emphasis added)
It is thus clear that the Court of Military Appeals has imposed a mandatory requirement that all records of trial required to be reviewed pursuant to Article 61 or 65(b), UCMJ contain at the very least proof of service of a copy of the post-trial review and advice on the defense counsel. In the absence of any response from the defense counsel, a waiver will normally be presumed and the convening authority or the supervisory authority, as the case may be, can then proceed to take action on the record.
It could be argued that there is a presumption of regularity that should attach *298and that the defense counsel was provided a copy of the post-trial review and advice, particularly in this case since the defense counsel was an attorney on the staff of the district legal officer who prepared the post-trial review and advice. However, the Court of Military Appeals, in my opinion, has gone beyond permitting a “presumption of regularity” and mandated that the record of trial contain proof of service of the post-trial review on the defense counsel.
It could be argued that a review of the post-trial advice in this case reveals that there are no irregularities or misstatements for a defense counsel to complain of; therefore, the failure to comply with Goode is harmless error. I cannot accept this argument. The Goode opinion makes it clear by implication, if not directly, that a convening or supervisory authority must wait at least five days after the post-trial advice is served on the defense counsel prior to taking action on the record, unless the defense counsel within that five day period submits either his written comments or a written waiver. In this case, as noted earlier, the Action of the Supervisory Authority was dated 31 December 1975 and the district legal officer’s post-trial review and advice was dated 29 December 1975, only two days earlier.
Another factor to be considered in this case is that the defense counsel not only argued strenuously against a punitive discharge at trial, but also submitted a petition for clemency to the convening authority. Although the military judge recommended a suspension of the punitive discharge, the convening authority disagreed and approved the sentence to a punitive discharge. In light of the language of the opinion in Goode, it is not only errors, irregularities, or misstatements that a defense counsel may challenge in a post-trial advice, but also “any matter ... on which he otherwise wishes to comment.” In his post-trial review and advice, the district legal officer stated that in his opinion there was little likelihood that the defendant could be rehabilitated and he recommended approval of the punitive discharge. This opinion and recommendation, particularly in view of the recommendation of the military judge, were properly the subject matter of appropriate comment by the defense counsel in the response permitted by Goode. I cannot, therefore, conclude that the failure to comply with Goode was “harmless error.”
For the above reasons, it is my opinion that this record should be returned to the supervisory authority for compliance with the Goode case and a new Supervisory Authority’s Action prepared.