(concurring in part and dissenting in part):
I concur in the majority opinion as to resolution of the question that falls within the purview of United States v. Green, 1 M.J. 453 (C.M.A.1976), and United States v. King, 3 M.J. 458 (C.M.A.1977).
I dissent from the balance of the opinion inasmuch as it ignores the mandate of Article 52(b)(2), (3), Uniform Code of Military Justice, 10 U.S.C. § 825(b)(2), (3), and paragraph 765(2), Manual for Courts-Martial, United States, 1969 (Revised edition), which provides as follows:
The court then votes on the proposed sentences, beginning with the lightest, until a sentence is adopted by the concurrence of the required number of members.
In this case the court was composed of nine members. Thus, a three-fourths’ majority amounted to seven; a two-thirds’ majority amounted to six. The announced sentence, agreed to by three-quarters of the members included, inter alia, three years confinement. At first blush this award might seem suitable as it was adjudged by a majority larger than the two-thirds required by law. However, it unfortunately allows the possibility that a lesser sentence agreed upon by six members might have been passed by in favor of a higher award by seven members.
Thus I consider the announced sentence on its face prejudicial to the appellant and would overrule the lower court’s affirmance in this regard.