(dissenting):
I disagree with reversal of the findings of guilty of the marihuana offense for the following reasons. (1) No objections were made by either individual or appointed defense counsel to the challenged questions, although the trial judge had expressly indicated earlier that if the accused was subject to such questioning, objection thereto “would be fine.” In the absence of objection, the alleged error should not be considered as a ground for reversal. Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 154d; Fed.R. of Ev. 103(a)(1); United States v. Walters, 22 U.S.C.M.A. 516, 519, 48 C.M.R. 1, 4 (1973); United States v. Cook, 432 F.2d 1093 (7th Cir. 1970), cert. denied, 401 U.S. 996, 91 S.Ct. 1224, 28 L.Ed.2d 535 (1971).
(2) Even if the issue is considered and the matter treated as error,1 there was no prejudice to the accused. Private First Class Gibbs had testified as a defense witness. He maintained that the elephant statute was his and he knew it had marihuana concealed in it; he asked for help to transfer his luggage from the barracks to the air base, and the accused responded; he did not tell the accused of the marihuana and the accused did not know that it was hidden in the statute; and finally, when at the airport the customs agents discovered the marihuana, the accused looked at him “with dismay.” The crucial importance of this testimony to the defense was acknowledged by defense counsel in his final arguments. Defense counsel said: “[I]t’s a question of credibility, it’s a question of whether the government has proven to you beyond a reasonable doubt that Gibbs is a liar. The defense would submit the Government has not met that burden and the defense further submits that the defense’s theory of lack of knowledge is viable and can be believed.” The accused’s own testimony on the matter was so incidental that I am convinced that the questions asked him did not influence the verdict.
(3) Conceding prejudice as to the marihuana offense, I perceive no justification for the majority’s conclusion that the findings of guilty of the heroin offenses must be set aside. Even the accused has not asked for that relief. The circumstances of the commission of the two offenses were entirely different, and the accused’s credibility in regard to the heroin offense was *333barely mentioned in the final arguments. On the record I cannot conclude, therefore, that the two sets of transactions and the accused’s credibility in relation to them were “ ‘so interrelated as to be inseparable.’ ” United States v. Johnson, 3 M.J. 143, 151-52 (C.M.A.1977) (Cook, J., dissenting). See also, United States v. April, 7 U.S.C.M.A. 594, 23 C.M.R. 58 (1957). I believe, therefore, that the proper disposition of the case is to disapprove only the marihuana offense, and to return the record of trial to the Court of Military Review for reassessment of the sentence on the basis of the findings of guilty of the heroin offenses. In fact, United States v. Moore, 24 U.S.C.M.A. 217, 51 C.M.R. 514, 1 M.J. 390 (1976), cited in the majority opinion, upheld the findings of guilty of one offense, while setting aside those pertaining to the offense as to which the error in the admission of evidence pertained. In this connection, I note that the Court of Military Review changed the sentence approved by the convening authority by substituting a bad-conduct discharge for the dishonorable discharge and reducing the period of confinement and forfeitures from 36 months to 24 months. This action was taken by the court because it was believed to be required by United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976), as the charges were alleged as violations of Article 134 rather than as violations of Article 92 of the Uniform Code of Military Justice. That construction of Courtney was disapproved in United States v. Jackson, 3 M.J. 101 (C.M.A. 1977), pet. for recon. denied, 3 M.J. 257 (C.M.A.1977). Although a preference has been expressed in this Court to allow an accused .the windfall resulting from a mistaken application of the law by the Court of Military Review, I do not believe that preference should be applied here. United States v. Singletary, 14 U.S.C.M.A. 146, 151, 33 C.M.R. 358, 363 (1963) (Quinn, C. J., dissenting); United States v. Batson, 12 U.S.C.M.A. 48, 30 C.M.R. 48 (1960). The Government could not possibly have anticipated the Court’s present action. In my opinion, therefore, the record should be returned to the Court of Military Review to reconsider its legal mistake as to the sentence, before the case is submitted for a rehearing.
. I am inclined to the Government’s position that there was no error. As the dissent noted in Doyle v. Ohio, 426 U.S. 610, 620, 625-26, 96 S.Ct. 2240, 2248, 49 L.Ed.2d 91 (1976), “nothing in the Court’s opinion suggests that there would be any unfairness in using petitioner’s prior inconsistent silence for impeachment purposes,” when his silence was not the result, as it was in Doyle, of exercise of his right to remain silent, after advice thereon as provided in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See also United States v. Moore, 484 F.2d 1284 (4th Cir. 1973).