(concurring in the result):
I concur with my Brothers’ opinion that United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), is applicable to courts-martial.
My point of departure from my Brothers’ opinion centers on the obligation to see that the jury is instructed to limit consideration of the possible perjury of an accused. The majority opinion places this burden upon the defense counsel; thus the instruction, if not requested, is waived. I suggest that a defense counsel is in a poor position to request an instruction that includes the possible conclusion that his client is a liar. Of governing direction is the gossamer line drawn by the Supreme Court in United States v. Grayson, supra, for consideration of possible perjury by the accused as to sentence. The Supreme Court stated the following:
Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant’s testimony on the stand, determine — with a consciousness of the frailty of human judgment — whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about *287the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society.
Id. at 55, 98 S.Ct. at 2618.
The Court, while relying on the most qualified person in the courtroom, admits to the possibility of a “frailty of human judgment” even in judges; therefore, it places great caution on its use. When it is necessary to instruct on this question it should be left to the sole determination of the trial judge. Accordingly, if he determines that an instruction should be given, he must give such an instruction whether requested or not.
Argument of trial counsel, as set forth in the majority opinion, could have triggered the need for an instruction if there was a legal determination by the trial judge that the accused’s “testimony contained willful and material falsehoods.” Whether to increase the sentence for the purpose of rehabilitation because of the accused’s willful conduct in a material area is in the military justice system a matter for the sentencing jury-
No instruction was given in this case. Trial judges are not mere robots; they are presumed to appreciate the law of the appellate courts, military or civilian, and the effect these decisions have on the matter then presently before them. I believe that the trial court in this case considered the ramifications of United States v. Grayson, supra, as to the present case, and found that an instruction was not necessary.