(concurring in the result):
My separate opinion in United States v. Iverson, 5 M.J. 440 (C.M.A.1978), inclines me to sustain service of the post-trial review on counsel other than the military lawyer who represented the accused at trial. However, as I regard as incorrect trial counsel’s argument on general deterrence as a factor in sentence determination (see my dissent in United States v. Varacalle, 4 M.J. 181, 187 (C.M.A.1978)), I believe it appropriate to vacate the action of the reviewing authority to allow him to reconsider the sentence.
I observed in my dissent in United States v. Courtney, 1 M.J. 438, 442 (C.M.A.1976), that the majority has rejected the rationale of United States v. Walter, 20 U.S.C.M.A. 367, 43 C.M.R. 207 (1971), by according the same force and consequence to an Army regulation as an article of the Uniform Code of Military Justice. Subsequently, I disagreed with the majority’s holding in United States v. Jackson, 3 M.J. 101 (C.M.A. 1977), that Courtney, should not be applied retroactively. Jackson, however, presented a situation where the maximum imposable punishment would have been decreased by Courtney. In my opinion, the import of Courtney overrules Walter; therefore, the maximum imposable confinement would be increased under the facts presented by the case at hand. This circumstance precludes the retroactive application of Courtney.
Additionally, I think it is important to call attention to a serious question as to the continued viability of the Manual provision directing reference to “the Code of the District of Columbia” for ascertainment of the maximum period of confinement. Manual for Courts-Martial, United States, 1969 (Revised edition), par. 127c (1).
The Government of the District of Columbia has been granted home rule by Congress and its penal code is no longer the product of that legislative body, but its own law-making council. Arguably this change in the character of the legislation has created a situation contrary to the intention and purpose of the Manual provision and, therefore, it should no longer be followed. See United States v. Bartram, 4 M.J. 510, 512 n. 6 (A.C.M.R.1977) (DeFord, J., dissenting). Eliminating the District of Columbia law on transactions in LSD leaves only the United States Code as a source for determining the period of confinement. That source provides for five years imprisonment. The end result is that the accused was benefited, not harmed, by the maximum confinement calculation of the trial judge. I need not, however, decide the matter. Whatever the decision, I would not apply it retroactively. Consequently, I agree with the principal opinion that, under Walter, the maximum sentence was incorrectly determined.
I, therefore, join in setting aside the decision of the Court of Military Review as to the sentence and directing that the record of trial be resubmitted to the reviewing authority for further proceedings consistent with the Court’s disposition.