dissenting:
I dissent.
I am unable to agree with the majority’s opinion that the appellant was prejudiced by the failure of the staff judge advocate to adequately summarize the factual evidence under the circumstances of this case.
Here, the staff judge advocate omitted a summary of Private McGraw’s testimony concerning a statement made to him by Private Rettenmaier regarding a previous conversation that Rettenmaier had with the appellant to the effect that he would “drop the charges” against the appellant if he was paid $50.00. This evidence affected the credibility of Private Rettenmaier’s testimony as one of the principal victims and controverted his testimony to the effect that the appellant had admitted his complicity in the crime and that Rettenmaier would be paid for his loss during the robbery if he “dropped the charges.” (R. 32).
Following the trial, the staff judge advocate omitted the above set forth testimony from his post-trial review. However, the omitted testimony was provided to the convening authority by the trial defense counsel prior to the convening authority’s action in the appellant’s case.
It has been previously held that while the staff judge advocate must necessarily be selective in summarizing evidence for inclusion in his post-trial review, he must set out all items of proof that may have a substantial influence on the decision of the convening authority.1
The omission of important testimony relating to a key issue in the case is reversible error.2
*721The foregoing cases were decided prior to the Court of Military Appeals’ decision in United States v. Goode3 in which it was held that the staff judge advocate’s review must be served on counsel for the accused with the 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 five days of said service upon him will normally be deemed a waiver of any error in the review.
We subsequently stated in interpreting the Goode rule in United States v. Myhrberg that as we viewed the Goode rule, “. . . the United States Court of Military Appeals is using it not only to reduce the number of these types of cases (post-trial review errors) to be considered on review, but the Court is also employing the rule as a prod to animate and impel trial defense counsel to a more active participation in the post-trial review procedure.
As a consequence of the requirements in Goode, supra, and Myhrberg, supra, the staff judge advocate served his deficient review on the trial defense counsel. That counsel in his response pointed out the omission of Private McGraw’s testimony as set forth above and invited the convening authority’s attention to the relevant pages of the record of trial. He also raised additional points concerning the review and enclosed a petition for clemency.
The staff judge advocate responded to the trial defense counsel’s comments with the following statement appended to the post-trial review:
“Counsel for the accused has submitted the attached matters for your consideration. I have reviewed said matters and in my opinion, they are adequately covered in the review or warrant no further discussion. My recommendation remains the same and a form of' action to accomplish said recommendation is attached for your signature.”
I view the foregoing comment as the staff judge advocate’s decision to not further comment on his omission of the critical factual matter set forth in the defense counsel’s Goode response.
It is obvious that the convening authority was aware of the omitted controverted testimony and was at liberty to judge the credibility of the witnesses and determine this controverted question of fact under the guidelines provided in the post-trial review.4
Accordingly, I find no prejudicial error was committed in this case.
. United States v. Scaife, 23 U.S.C.M.A. 234, 49 C.M.R. 287 (1974); United States v. Fields, 9 U.S.C.M.A. 70, 25 C.M.R. 332 (1958).
. United States v. Collier, 19 U.S.C.M.A. 580, 42 C.M.R. 182 (1970); United States v. Scaife, supra.
. United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975).
. Where the omission is strictly factual in character, I do not believe that the convening authority would pay additional credence to the staff judge advocate’s recommendation and opinion as distinguished from the reference to the record supplied by the trial defense counsel.