concurring:
I would concur without comment were it riot for the fact that I believe the dissenting judge relies upon a misinterpretation of language I authored that appears in the Myhrberg1 en banc opinion. The decision in that case was concerned with the perimeters of the waiver created by a defense counsel’s failure to comment upon an error in a post-trial review after having been afforded an opportunity to do so under the mandate of United States v. Goode, 28 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975). in the case sub judice the issue concerns the very different question of the impact or effect of a comment by the trial defense counsel on a serious omission from the post-trial review. Therefore, in my view, reliance upon Myhrberg is inapposite. The dicta quoted by the dissenting judge does not say, nor was it intended to convey, the concept that trial defense counsel’s comments were to act as a substitute review.2 In my view the Goode rule provides the trial defense counsel with an opportunity to, among other things, call attention, as was done in the case sub judice, to omissions in the post-trial review which he feels ought to be included in that review. It is then up to the staff judge advocate to adopt or reject those comments. If he rejects those comments, as he did here, he does so at his peril, because “. . . the convening authority presumptively acts in accordance with his staff judge advocate’s advice.”3 As I find that the trial defense counsel preserved the error by his Goode review comment, and the omission from the review was prejudicial and of the type that cannot be cured by a reassessment, I concur with Judge Dribben that a new review is mandated.
. United States v. Myhrberg, 2 M.J. 534 (A.C.M.R. 16 July 1976).
. See Chief Judge Clausen’s caveat in his concurring opinion in United States v. Myhrberg, supra.
. United States v. Hill, 22 U.S.C.M.A. 419, 422, 47 C.M.R. 397, 400 (1973); see also United States v. Grice, 8 U.S.C.M.A. 166, 23 C.M.R. 390 (1957).