concurring in the result:
I am unwilling at this time to apply that portion of the opinion in United States v. Booker, 5 M.J. 238 (C.M.A.1977), concerning non-judicial punishments as the law for the following reasons.
The United States Court of Military Appeal’s views on the admissibility of the nonjudicial punishments described in Booker with its constitutional overtones was not an issue either at trial or before the appellate courts. As such, those expressions or viewpoints not called for by the facts and circumstances of the case, while possibly giving an indication which way the law may develop in the future, are generally considered no more than obiter dictum and entitled to be weighed only insofar as those expressions, opinions, and reasons may justify the language of the holding which are supported by the factual circumstances of the case.1
The reasons for distinguishing dictum from a holding of a court has been said to be that a question actually before the court and decided by it is investigated with care and considered to its full extent, whereas other principles, although considered in their relation to the case decided, are seldom completely investigated and considered as to their possible bearing on other cases.2
The application by the courts, of prior precedent is not a rule of law but a matter of judicial policy described as the doctrine of stare decisis. The rationale behind the policy is the need to promote certainty, stability, and predictability of the law.3
Generally, the doctrine of stare decisis does not attach to such parts of a court’s opinion which are dicta.4
Accordingly, I see no responsibility to apply the language in the Booker opinion concerning non-judicial punishments until such time- as the United States Court of Military Appeals decides that issue in an appropriate case in which those factual circumstances are presented as an appellate issue.
. See Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935); Henderson v. United States, 237 F.2d 169 (CA 5, Fla. 19) 61 A.L.R.2d 666.
. Humphrey's Executor v. United States, supra. See also Fletcher v. Scott, 201 Minn. 609, 277 N.W. 270 (1938) 114 A.L.R. 762.
. Warring v. Colpoys, 122 F.2d 642 (CA, DC, 1941), certiorari denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 593 (1941).
. See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). See also 61 A.L.R.2d 1119.