(concurring in the result):
I would affirm the findings and sentence because I believe evidence of shipboard nonjudicial punishments are admissible for sentencing purposes and I do not believe United States v. Booker, 5 M.J. 238 (C.M.A.1977) applies retroactively. I agree with the general thrust of Senior Judge Dunbar’s opinion as well as his conclusion that Booker should be overturned, but I would confine the comments to a discussion of the breach by the Court of Military Appeals of its obligation to follow the law as enunciated by the United States Supreme Court.
United States v. Booker, while purporting to apply the Supreme Court’s decision in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), has, in fact, contravened it by perpetuating a requirement for counsel at summary courts-martial. The Court of Military Appeals, in addition, has gone on to create new prerequisites for both summary courts-martial and non judicial punishments never even hinted at in Middendorf v. Henry. The new imperative for counseling from lawyers before an accused can opt for nonjudicial punishment or a summary court-martial is not required by Middendorf v. Henry and will surely result in delays that can rob these proceedings of their promptness and their effectiveness. Furthermore, to the detriment of both accused and command alike, the Booker decision has severely restricted the power of commanding officers to refer suspected offenders to the lowest possible adjudicating authority, by arbitrarily imposing a limitation on the subject matter jurisdiction of summary courts-martial and non judicial punishment. Not one of these new rules for summary courts-martial and non judicial punishment was mandated by the Supreme Court. In fact, they are not even alluded to in Middendorf v. Henry, and surely are contrary to the spirit of that decision.
A look at the background leading up to United States v. Booker, may shed some light on the enormity of the decision of the Court of Military Appeals in that case. Booker was precipitated by Middendorf v. Henry, which in turn had been spawned by the United States Navy’s stand on the applicability to the military of an earlier Supreme Court decision, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In Argersinger the Supreme Court had held that the Sixth Amendment to the United States Constitution required appointment of counsel for indigents before confinement could be imposed, even in misdemeanor cases. The Navy said that the Argersinger holding was inapplicable to the military, particularly with respect to summary courts-martial. This position was promptly challenged in federal court and ultimately appealed to the Supreme Court. Meanwhile, prior to that Court’s ultimate resolution of the matter in Middendorf v. Henry, the United States Court of Military Appeals ruled in United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973), that Argersinger was applicable to the military and found constitutional requirements for providing counsel at summary courts-martial. The conclusions of the Court of Military Appeals in Alderman have been clearly and unequivocally rejected by Middendorf v. Henry, which held that the requirements of Argersinger did not apply to the military summary court-martial, that there was no Sixth Amendment right to counsel in summary court-martial proceedings and that Fifth Amendment due process requirements were also met without a separately appointed counsel acting exclusively in an accused’s behalf at a summary court-martial. In so ruling, the court noted the various protections afforded in a trial by summary court-martial, including the requirement that the summary court-martial officer safeguard the interests of the accused. Now, in the face of the Supreme Court’s clear position on this matter, the United States Court of Military Appeals has, in the following language, declared itself outside the reach of our highest court:
It is in order to give some meaning to the due process guarantees of the Fifth Amendment that we must provide limitations on the utilization of evidence of the imposition of discipline at a summary court-martial in a subsequent trial. *530Those hearings in which the accused was represented by counsel, or has executed a valid waiver of the assistance of counsel may be used for the purpose of enhancement of the punishment since the basic concepts and protections of Argersinger will have been met.1
Furthermore, although Alderman is never mentioned in Booker, the Court’s failure to renounce that earlier case, coupled with the above quote, certainly indicates that Aider-man is still considered valid law by the Court of Military Appeals. Added to this is the fact that the United States Court of Military Appeals has, after two years, still not specifically answered the question of Alderman’s continued viability, which was certified to it by the Judge Advocate General of the Navy in March 1976.2
One is led inevitably to the conclusion that the Court of Military Appeals has consciously chosen to disregard the United States Supreme Court on this matter. In taking this course, the Court of Military Appeals has failed to follow its own stated modus operandi when in disagreement with the Supreme Court. In United States v. Sims, 2 M.J. 109 (C.M.A.1977), the Court said, “ . . . we must be content to express any misgivings or disagreements in opinions, which, nonetheless, conform in disposition to the holdings of the Supreme Court.”3 Just the opposite tack has been taken in Booker. Lip-service deference has been given to the Supreme Court while refusing, in fact, to conform to its decision. This message comes through loud and clear at page 240 of Booker where the Chief Judge states, “ . . . with proper deference to the Supreme Court . . . ” and then goes on in footnote 13 to cite published criticism of the Supreme Court’s decision in Middendorf v. Henry, along with problems he sees associated with the fact that a summary court-martial officer is a “lay person”, and then concludes with this statement:
It is these factors coupled with our evaluation of the overall ramifications of Middendorf which compel this decision as to the use of summary courts-martial.
Thus, it appears that the Court of Military Appeals, in disagreement with the conclusions in Middendorf v. Henry, felt impelled to a decision that would modify its results.
Up to now there has never been a direct appeal to the United States Supreme Court from a decision of the Court of Military Appeals and no sanctioned procedure for such an appeal is readily apparent. Necessity, however, is the mother of invention. The Court of Military Appeals would do well to carefully consider the ramifications of its flagrant departure from a Supreme Court decision. Abuses of power inevitably provoke reactions which can undo valuable and important changes that have developed. I, for one, would hate to see the many good things advanced by the Court of Military Appeals swept aside in a broad legislative or executive reaction to cases such as Booker. Hopefully, the Court of Military Appeals in its present limited reconsideration of Booker4 will see the wisdom of renouncing its prior action in its entirety and act accordingly. Otherwise, since the United *531States Supreme Court deemed the questions posed in Middendorf v. Henry important enough for review and resolution by the highest court in the land, it might very well consider an inferior court’s decision to distort and pervert that ruling ample reason to exercise its supervisory jurisdiction over that lower United States Court by entertaining a petition for a writ of mandamus,5 just as the United States Court of Military Appeals has felt compelled to take extraordinary action in the exercise of its “supervisory function” when the circumstances so required.6
. United States v. Booker, 5 M.J. 243, 244.
. United States v. Redmond, NCM No. 76 0006 of 23 February 1976, certified for review to the Court of Military Appeals by the Judge Advocate General of the Navy on 29 March 1976 pursuant to Article 67(b)(2), Uniform Code of Military Justice on the following issue:
Was the United States Navy Court of Military Review correct in its determination that the military judge and reviewing authorities erred prejudicially by considering evidence of the accused’s two prior convictions by summary court-martial, United States v. Aider-man, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973), in light of Middendorf v. Henry [425 U.S. 25, 96 S.ct. 1281, 47 L.Ed.2d 556] (March 24, 1976)?
The Court of Military Appeals subsequently affirmed Redmond, without opinion, citing only United States v. Booker, 5 M.J. 238 (C.M.A. 1977); United States v. Redmond, 4 M.J. 56 (C.M.A.1977).
. Id. at 112, n. 8.
. The Court of Military Appeals on November 28, 1977 granted a petition for reconsideration of Booker for the limited purpose of considering:
Whether summary courts-martial should be limited to disciplinary actions concerned solely with minor military offenses unknown in the civilian society. 4 M.J. 137.
. Ex parte Bradley, 74 U.S. (7 Wall.) 364, 19 L.Ed. 214 (1869).
. McPhail v. United States, 1 M.J. 457 (C.M.A. 1976).