(dissenting):
This case provides a present example of the wisdom of the legal maxim: “Hard cases make bad law.” I am moved by the force of the lead opinion, no doubt in the same way that the United States Navy-Marine Corps Court of Military Review would have been had the same words been presented by the appellate defense counsel. However, I must read the opinion as a judicial pronouncement, not an argument, and, as such, I cannot agree with the rule it purports to set forth.
The majority apparently extends the rule in United States v. Rivas, 3 M.J. 282 (C.M. A.1977), to appellate defense counsel.1 Despite the facial appeal of such a rule, it is, in practice, difficult to apply since it substitutes the subjective reaction of a particular appellate judge to a particular issue for the action taken by the appellate defense counsel. Such a standard is impossible to manage. The ultimate decision to raise any issue thus lies in the hands of the appellate court, acting with the clear light of hindsight based upon undefined reasons as to how the issue affects it without any knowledge of the appellate defense counsel’s reasoning which underlays his decision not to pursue the issue. Obviously, the result will be that appellate defense counsel must now raise every possible issue or suffer the peril of being declared incompetent by this Court. This doctrine flies in the face of “the obligation of any lawyer — whether privately retained or publicly appointed — not to clog the courts with frivolous motions or appeals.” Polk County, et a 1. v. Dodson, 454 U.S. 312, 323, 102 S.Ct. 445, 452, 70 L.Ed.2d 509 (1981) (footnote omitted).
In the instant ease, I can agree that, had I been the appellate defense counsel, I might well have raised certain issues on appeal.2 However, the test is not what I might have done, but whether the decisions of the appellate defense counsel met the standards of professional competence demanded of him by the Uniform Code of Military Justice and the Standards of Professional Ethics. These involve an objective standard. I can review the record and determine whether such issues are, in my opinion, frivolous and, what is more important, whether failure to raise them violated the Code or the doctrine of due process as applied in the military justice system.
Looking at the issues identified by the majority, the issue of duress was litigated at trial and resolved adversely to the accused. The issue of sentence appropriateness was raised before the convening authority, who provided some sentence amel*271ioration in his action.3 I cannot say that the accused has not been afforded the benefits provided by the Uniform Code of Military Justice; hence, I cannot find that appellate defense counsel was inadequate in his decision to submit the case on the merits to the Court of Military Review and here. To require more appears to me to be a substitution of a subjective reaction to this case rather than an objective review of the actions of the appellate defense counsel. If we impose this subjective standard of review, this Court, within a short time, will receive nothing but inadequacy of representation assertions and will never get to consider the substantive questions of law which we are created to resolve. I cannot accept such a standard and, therefore, dissent.
. In United States v. Rivas, 3 M.J. 282 (C.M.A. 1977), which involved an objective standard in a subjective way, I dissented, expressing my reservations with the impact of the lead opinion. 3 M.J. at 290.
. While emotions could easily be stirred by this case, I cannot formulate a rule to govern this type of situation that, in its general application, would not be unmanageable.
. The accused was convicted of five episodes of absence without leave totaling almost 600 days. The military judge, sitting alone as a special court-martial, sentenced him to a bad-conduct discharge, confinement at hard labor for 4 months, and reduction to E-l. The convening authority approved the sentence adjudged, but suspended confinement in excess of 90 days for 6 months. I cannot say, as a matter of law, that the sentence was excessive.