(dissenting):
I dissent.
This is a difficult case in that guilt and the appropriateness of the sentence are clear, but the means of arriving at those results leaves much to be desired. I would set aside the conviction and sentence and authorize a rehearing due to cumulative error. United States v. Evans, 18 U.S.C.M.A. 3, 39 C.M.R. 3 (1968); United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969); United States v. Green, 4 M.J. 203 (C.M.A.1978), Chief Judge Fletcher’s concurring opinion at 204.
I find error: in the introduction of nonjudicial punishment records; in failure to adequately advise the accused of his allocution rights prior to sentencing; in failure to assure the accused’s understanding of his pretrial agreement; and, in allowing demonstrative evidence at trial unrelated to the offenses charged. Separately, each error may have had no effect. Cumulatively, they cast substantial doubt on the fairness of this trial.
NONJUDICIAL PUNISHMENT
I am unable to participate in my brothers’ quantum jump from determination that awards of nonjudicial punishment aboard ship are lawful without the accused being afforded an opportunity to refuse punishment or consult with counsel, to their determination that there is no violation of equal protection in utilizing those records to aggravate punishment at a later court-martial on other charges. At the risk of accusation of fascination with my own words, I reiterate my dissenting opinion in United States v. Lecolst, 4 M.J. 800 (N.C.M.R.1978).
I disagree with my brothers in their conclusion at law. Evidence of the award of nonjudicial punishment, when the recipient is attached to or embarked in a vessel, should not be admissible to aggravate the penalty prescribed for other offenses tried at a later court-martial, as evidence of the character of prior service, unless decisional criteria recently announced are met. See, Manual for Courts-Martial, United States, 1969 (Revised edition), paragraphs 75d and 127c; JAGMAN 0117, Article 15, Uniform Code of Military Justice; United States v. Booker, 3 M.J. 443 (C.M.A.1977).
Booker states the military law. It should be made equally applicable to all members of the United States military forces. If not, there is no equality of treatment or punishment for armed forces personnel. *888By the majority decision, individuals who serve the more onerous duty at sea face the prospect of receiving punishment more harsh than their fellow servicemen on shore. I find no reason to suppose that inequality is reasonably imposed because records of nonjudicial punishment are ordinarily admissible with some exception as my brothers say, or under some esoteric legal theory involving distinction between classes as they also say. The following example illustrates the point.
A sailor on duty ashore has an option to refuse the award of nonjudicial punishment by his commanding officer. He must be advised of that right and he must be afforded an opportunity to consult with independent counsel, a lawyer, prior to opting for nonjudicial punishment. If not advised of his option, or if not afforded an opportunity to consult with a lawyer, or both, evidence of the award of that non judicial punishment may not be used to aggravate the penalty for another offense tried at a later court-martial. If so advised, that evidence is admissible to aggravate the later court-martial penalty. United States v. Booker, supra. A sailor on duty aboard ship has no option to refuse nonjudicial punishment, and, as a consequence, he has no derivative right to consult with a lawyer prior to the award of such punishment. The latter situation is by statutory fiat. Article 15, UCMJ. My brothers say that the sailor or marine assigned to duty aboard ship may reap the dubious benefit of admission of evidence aggravating his court-martial punishment, while the sailor or marine assigned to duty ashore and afforded the same treatment may not be so pilloried, because sailors and marines aboard ship are in a class by themselves. Equality and fair treatment? No!
In United States v. Booker, supra, the United States Court of Military Appeals evinces a clear mandate that an individual must be afforded the advice of legally trained counsel in order to permit him to make an informed decision, i. e. in order to give that person an opportunity to make a knowledgeable decision as to waiver of his right to appear in a trial forum for adjudication of his guilt of an offense under the UCMJ. In that context, it is waiver of trial which is the important aspect of the Booker decision. That is, if an individual faces punishment for an alleged offense, and if that individual feels he is innocent, he is afforded the opportunity to request trial rather than running the risk of a single individual—his commanding officer—deciding whether or not he is guilty, without benefit of an adversary legal proceeding. An individual may not desire to experience that risk. Unless he is a sailor or marine attached to or embarked in a ship (vessel) he may refuse that risk. Article 15, UCMJ.
United States v. Booker, supra, while it may forewarn a mandatory procedural change to summary court-martial and nonjudicial punishment proceedings under the High Court’s supervisory authority as noted in McPhail v. United States, 24 U.S.C.M.A. 304, 52 C.M.R. 15, 1 M.J. 457 (1976), is now construed as establishing an exclusionary rule of evidence. Cf. SECNAV Message 012307Z, December 1977, ALNAV 073/77. That rule was established to give meaning to due process guarantees of the Fifth Amendment, and to fair treatment. United States v. Booker, supra, at 448.
I quarrel not with my brothers decision as to the current legality of awards of nonjudicial punishment, whether aboard ship or on shore. There is valid reason for summary punishment at sea. I part with them on the single aspect of the admissibility as aggravating evidence of awards of nonjudicial punishment as subsequent court-martial proceedings. As the above example shows, a man on board ship may be the evidentiary victim of a prior poor service record, merely because he was on duty at sea; while his shore-duty contemporary may not experience that debility, under the same disciplinary-judicial circumstance, merely because he had the good fortune to be ashore. Aside from the legal and philosophic ramifications of such a happenstance, I find nothing fair or equal in that occurrence. I do not believe a sailor at sea knowingly, intentionally, or necessarily waives equal treatment by going to sea. I am unable to agree *889with my brothers because I find such a possibility abhorrent to a reasonable sense of fairness. It cannot be right. It cannot be a valid application of leadership principles, amongst which fair treatment of personnel is basic.
I would impose a requirement that shipboard commanding officers provide an accused with an option to choose a court-martial rather than nonjudicial punishment, and an opportunity to confer with independent counsel prior to opting for disposition of the case, if the evidence of imposition of that discipline is to be admissible in a subsequent court-martial trial. Of course, such a requirement has no effect, or bearing, on the authority of a commanding officer to impose nonjudicial punishment. The requirement only affects the admissibility of service record evidence at a later and different trial by court-martial. United States v. Booker, supra, and the need for reasonably fair and equal treatment amongst members of the military service require such action.
The above conclusion results in consideration of shipboard nonjudicial punishment records in the same manner as all other records of nonjudicial punishment under consideration in the Booker case. That result necessitates decision, or assumption, that the Booker rule is retroactive in application, or a determination that it is not retroactive. The latter determination does not seem viable. The Secretary of the Navy is responsible for promulgation of regulations as to the admissibility of records of nonjudicial punishment, paragraph 75d of the Manual, supra, and he has acted. JAGMAN 0117, and, more recently, AL-NAV 073/77, supra. The ALNAV, paragraph 2.M, provides that cases not finally reviewed prior to 11 October 1977 should be reviewed in accordance with United States v. Booker, supra. Although the ALNAV contains a disclaimer, paragraph 8, as to infringement upon the independent judgement of military judges, it is for guidance to personnel associated with military justice matters (the convening authority?). No obvious reason appears to exclude the AL-NAV from the scope of paragraph 75d of the Manual, supra. Concepts of fairness and equal treatment demand otherwise; for no good reason exists to apply the Secretary’s guidance to all cases except those before this Court. The effect of ALNAV 073/77 is to apply the Booker rule retroactively to all cases not finally reviewed. That ALNAV nullifies any necessity to decide whether or not United States v. Booker, supra, is to be afforded retroactive application under the principles noted in United States v. Jackson, 3 M.J. 101 (C.M.A. 1977). For the Navy, the decision has been made. United States v. Booker, supra, is to be afforded retroactive application to all cases not finally reviewed.
I find that admission of evidence of the award of nonjudicial punishment to this accused on four occasions was erroneous.
I must note that my view as herein expressed should not be construed as expressing agreement with the rule enunciated in United States v. Booker, supra. I believe Booker sets out bad law, which substantially changes the military justice-discipline system in the armed forces. I believe that this change is detrimental to the justice system and detrimental to the disciplinary structure of the armed forces. A military justice system is a discipline system as well as a criminal law system. The Booker rule requires that an offender be punished at court-martial, without recourse to his past service conduct. It requires uninformed decision making by sentencing authorities. In that sense, it is unfair. It erroneously assumes Commanding Officers are inept. Its effect is detrimental to the security of this country, because it further weakens control over the military forces. Albeit unintentional, it is another drop of acid on the fabric of the military security of this country. If present trends continue—not found in our military justice system alone—that security will become dangerously eroded. Only disciplined personnel make an effective military force. However, Booker is the law. The wisdom of that law must be decided by the Congress and higher courts. We can but comply. Engrafting exceptions to the rule can avail little but further con*890fusion, already rampant, as to its application. As noted here, those exceptions may cause unfair and unequal treatment to military personnel. I find no merit in that course of action. The best solution is to overrule or repeal the Booker rule before further damage is done.
ALLOCUTION RIGHTS
Failure to advise the accused at trial prior to sentencing that he may, inter alia, remain silent, is error. United States v. Hawkins, 25 U.S.C.M.A. 23, 54 C.M.R. 23 (Interim), 2 M.J. 23 (1976). Prejudicial, I believe. United States v. Henry, No. 77 1141 (N.C.M.R. 28 Sept. 1977). See, United States v. Barnes, No. 77 1785 (N.C.M.R. 6 Feb. 1978), dissent. (R. 30).
PRETRIAL AGREEMENT
The accused objected to introduction of evidence prior to sentencing showing certain aggravating circumstances surrounding the offenses sub judice. That evidence also showed commission of other offenses which had been withdrawn pursuant to the terms of the pretrial agreement in the case. It is readily inferrable that exclusion of the questioned evidence was part and parcel of the pretrial agreement, from the accused’s viewpoint. Insufficient inquiry at that stage of the proceedings resulted in failure to comply with the rule set out in United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976)—the accused’s understanding of the terms of the agreement was not assured, nor, was he given the opportunity to change his plea at that time. United States v. King, 3 M.J. 458 (C.M.A.1977). I find error from those events.
DEMONSTRATIVE EVIDENCE
I can add nothing to the majority opinion concerning the inappropriate demonstration of how the accused was observed dividing a pile of marijuana. The problem centers around allowing Government counsel to use a bulk quantity of marijuana, never introduced at trial, in the demonstration. The evidence was irrelevant and immaterial. Its use prejudicial.
For the foregoing reasons I would set aside the conviction and the sentence. The errors are serious and too numerous to overlook.