(concurring in the result):
The constraints of the Dunlap1 rule no longer exist. United States v. Banks, 7 M.J. 92 (C.M.A.1979). Abrogation of the rule, however, came after the convening authority had reviewed the accused’s conviction. Consequently, when it became apparent he had to act on the record or be presumed to have denied the accused a speedy review, the convening authority had to choose one or another of the infelicitous courses available to him. See the discussion in my separate opinion in United States v. Iverson, 5 M.J. 440, 447 (C.M.A.1978), on the relationship between the Goode2 rule and the Dunlap rule.
On the recommendation of his staff judge advocate, who, in his post-conviction review of the record, remarked on the impact of Goode on the Dunlap rule and referred to a message by the Judge Advocate General of the Air Force stressing that the 90-day rule of Dunlap should not be allowed to expire *3in order to satisfy the 5-day period allowed by Goode to defense counsel for response to the staff judge advocate’s review, the convening authority elected to act before expiration of the Goode period. I cannot fault him for that choice in light of the state of the law at that time. He may even have thought that the delay necessitated by transfer of the case to him for review might not be regarded as excusable. See my opinion in United States v. Lucy, 6 M.J. 265, 266 (C.M.A.1979). The inescapable fact, however, is that he did not allow defense counsel the time prescribed by Goode. The question, therefore, is whether that course is excusable. Unlike my Brothers, I believe that Iverson has nothing to say about that matter as it deals with the appointment of a substitute defense counsel for trial defense counsel as a means of complying with the Goode rule within the Dunlap period.
In United States v. Hill, 3 M.J. 295, 297 (C.M.A.1977), the Court said that Goode could best serve its intended purpose “only if we insist upon compliance” with it. While the Court did not articulate its reasons in its Per Curiam opinion in United States v. Lucy, supra, the Court noted it found no merit in certain unidentified claims of error. In my separate opinion, I identified one of the claims as an allegation that the failure of the convening authority to allow defense counsel five days to respond to the staff judge advocate’s review of a limited rehearing directed by the Court of Military Review was reversible error. 6 M.J. at 266. As I concluded the circumstances demonstrated that “no useful purpose” would be served by remand for compliance with Goode, I joined my Brothers in holding that the assignment of error lacked merit. Similar circumstances are present in this case.
Accused’s petition for grant of review set out two assignments of error. One posited a denial of due process because of the “injudicious room and building in which the trial was held”; the other asserted a denial of the right to a 5-day period to respond to the staff judge advocate’s review, as provided by Goode. The Court granted review on the Goode issue because it was like that in Lucy, which was then pending decision by the Court. Denial of review of the due process challenge left no question as to the validity of the trial proceeding. In my opinion in Lucy, I concluded that this circumstance weighed against the necessity for invalidation of the convening authority’s action because of the failure to comply with the Goode rule. Other factors weigh the balance further in that direction. First, the principal opinion notes accused’s counsel was furnished with the staff judge advocate’s review. He responded to it and his response was submitted to the convening authority for appropriate action. That procedure was spelled out in the staff judge advocate’s review as the best available, considering the remaining Dunlap time and the special caution as to compliance with Dunlap promulgated by the Judge Advocate General of the Air Force. With submission of defense counsel’s response, the staff judge advocate advised the convening authority that, while he could not withdraw his original action,3 he could change the place of confinement from the Disciplinary Barracks at Fort Leavenworth to a retraining command at Lowry Air Force Base to make the accused eligible for consideration for restoration to duty,4 which was the only non-trial issue, other than objection to violation of the Goode rule, raised in the response.
The accused suggests that a different procedure, which would not have violated Goode, was available to the convening authority; specifically that the convening authority could have released him from post-conviction confinement and, thereby freed himself from the time strictures of Dunlap. Perhaps so. But the question is not what could have been done, but what was done. What was done accorded the accused full opportunity to have his post-conviction plea for restoration eligibility considered by the *4convening authority while he still was empowered to grant that relief.
The second added circumstance that I believe weighs against invalidating the convening authority’s action is that all matter that would have been before the convening authority had Goode been adhered to was considered, not only by the convening authority, but also by the Court of Military Review when it reviewed the accused’s case. It found the staff judge advocate’s advice unimpeachable on “the law and facts.” United States v. Thomas, 2 M.J. 263, 265 (A.F.C.M.R.1976). This case, therefore, is not one in which there is an “erroneous, inadequate or misleading” staff judge advocate’s review, which is the kind of review the Goode rule was intended to eliminate. Also, it is not the kind of case confronted in Hill, where the convening authority could not take the ameliorative action prayed for in defense counsel’s response to the staff judge advocate’s review.
In view of the circumstances discussed above, I conclude, as I did in Lucy, that no useful purpose would be served by invalidating the action of the reviewing authority. I, therefore, join in affirming the decision of the Court of Military Review.
. Dunlap v. Convening Authority, 23 U.S.C. M.A. 135, 48 C.M.R. 751 (1974).
. United States v. Goode, 1 M.J. 3 (C.M.A. 1975).
. See United States v. Shulthise, 14 U.S.C.M.A. 31, 33 C.M.R. 243 (1963).
. See para. 2-37, AFR 110-7(2) (30 Jan. 1976).