concurring in part and dissenting in part:
Following the ratio decidendi of United States v. Bryant, 3 M.J. 396 (C.M.A.1977), I concur with my brethren in their disposition of appellant’s assertion that the rule established in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974), is for application in his case.
I am unable, however, to join my compatriots in their resolution of the violation of the mandate created in United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975). While they concede that the staff judge advocate erred in not providing the trial defense counsel with a copy of his review until after the convening authority had taken his action, they decline to provide any relief.
Their declination is based on an inability to find any prejudice. Their observations in this regard are three in number: (1) the comments on the review eventually' submitted by trial defense counsel raised no legally cognizable errors; (2) the convening authority suspended the discharge in accordance with a clemency petition earlier *501submitted by the trial defense counsel; and (3) because the appellant has completed the terms of the original sentence and is on his way to complete rehabilitation.
My problem with the approach taken by the majority lies in my interpretation of United States v. Goode, supra. The rule laid down in that case reads, in pertinent part:
“Accordingly, it is ordered that on and after May 15, 1975, a copy of the written review required by Article 61 or 65(b), UCMJ, 10 U.S.C. § 861 or 865(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.” Id. at 370, 50 C.M.R. at 4, 1 M.J. at 6 (Emphasis added).
In my view the underlined portion of the above quote makes it clear that this rule was designed to provide defense counsel with a means of submitting counterpoints to the judge advocate’s review. The defense counsel’s comments concerning the review need not be limited to simply those parts which might appear to be “erroneous, misleading or inadequate.” Consequently, a determination that an appellant, who has been deprived of his right to a Goode review, was not prejudiced based on a determination that there were no errors in the post-trial review, fails to take into account that he also has the right to comment on non-erroneous matters to, and have such comments considered by, the convening authority before he takes his action. Appreciating that the convening authority may take ameliorating action on a sentence for any reason he deems meritorious, an appellant has been denied a substantial right when he is not afforded his Goode review. Thus the legal merits of trial defense counsel’s belated comments on the post-trial review are irrelevant in determining the question of prejudice in a case such as this. The value of such comments is for the convening authority, rather than this Court, to determine.
Concerning the fact that the convening authority suspended the discharge in this case, and that the appellant is apparently well along the road to rehabilitation, I would cite to the following quote in United States v. Hill, 3 M.J. 295, 297 (C.M.A.1977):
“The mere fact that upon appeal harm to the accused may be found to be nonexistent, in no sense lessens the obligation to see that he receives those benefits that are rightly his.”
We do not know, and can only speculate, as to whether or not the convening authority might have afforded the appellant any additional relief had he been in timely receipt of the trial defense counsel’s remarks.
Consequently, I believe, along with the United States Court of Military Appeals, that we should “. . . conclude that the purpose of Goode can be effected only if we insist upon compliance therewith.” United States v. Hill, supra; United States v. Wills, 1 M.J. 937 (A.C.M.R. 1976).
This case should be returned for a new review and action.
In passing, it is noted that the convening authority took an action at variance with that recommended by his staff judge advocate without the explanation required by paragraph 85c, Manual for Courts-Martial, United States, 1969 (Revised edition), and United States v. Keller, 23 U.S.C.M.A. 545, 50 C.M.R. 716, 1 M.J. 159 (1975). However, the need for the presence of such an explanation becomes less than compelling in cases, such as the one sub judice, where the convening authority’s deviation results in an action more favorable than that recommended by his staff judge advocate. I would, therefore, not delay any further the resolution of this case on account of this error.