(dissenting):
I disagree with the majority opinion for three reasons.
1. Paragraph 75d, Manual for Courts-Martial, United States, 1969 (Revised edition), provides that service records maintained pursuant to “regulations which reflect the past conduct ... of the accused” are admissible in evidence at a court-martial for sentence consideration. I am satisfied that the record of accused’s conduct here was maintained as provided by regulations and was properly admitted into evidence. See para. 2-3e, AR 600-37 (May 18, 1977); para. 2-20b, AR 27-10 (C 16, November 4,1975); AR 640-2-1, Item 27 (C 1, January 30, 1975); and my dissent in United States v. Boles, 11 M.J. 195, 201 (C.M.A.1981).
2. The convening authority reassessed the sentence adjudged at trial on the assumption that the evidence was improperly admitted. I am satisfied that, as a matter of law, the action taken to purge the assumed error of prejudice to the accused was not an abuse of discretion, and, must, therefore, stand. United States v. Dukes, 5 M.J. 71 (C.M.A.1978).
3. As to the finality of the Massachusetts conviction, this Court can take judicial notice that Massachusetts has no automatic right to appellate review of a conviction and sentence by a criminal court empowered to sentence the defendant to the Massachusetts Correctional Institution. Para. 147, Manual, supra (now Mil.R.Evid. 201A(a)). A.L.M.G.L. c. 278, §§ 18, 24, 28, 28B and 33E; A.L.M. Mass.R.Crim.P. 28(c). Consequently, the defendant best knows whether his conviction has been appealed. In my opinion, the accused has the initial obligation to assert the pendency of the appeal, as an objection to the admissibility of the evidence of conviction. See my separate opinion in United States v. Verdi, 5 M.J. 330, 341 (C.M.A.1978). Assuming the relevance of the pendency of an appeal for the purpose of sentence consideration (cf. United States v. Gilliland, 10 U.S.C.M.A. 343, 27 C.M.R. 417 (1959)), the accused’s failure to allege the fact that an appeal was pending supports, rather than defeats, the trial judge's ruling on admissibility.
I would affirm the decision of the Court of Military Review.