dissenting:
I dissent. In United States v. Beene, 4 U.S.C.M.A. 177, 15 C.M.R. 177 (1954), the Court of Military Appeals held that drunk driving and involuntary manslaughter are separate offenses, even where the aggravating factor of injury is alleged in the drunk driving specification. Accord United States v. Mabry, 2 M.J. 412 (A.C.M.R.1975). Beene has not been overturned by the summary disposition in United States v. Mallery, 14 M.J. 212 (C.M.A.1982). A summary disposition is based on the particular facts of that case and disposes only of that particular case. See United States v. Fox, 10 M.J. 176 (C.M.A.1981).
“A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a) (1976) (emphasis added). In this case my brothers agree with me that there has been no prejudice as to sentence. Where there has been no substantial prejudice, we abandon our judicial duty and squander judicial resources when we spend valuable time merely tidying up the record of trial. Since there was no prejudicial error in this case, our duty is to affirm. United States v. Waymire, 9 U.S.C.M.A. 252, 26 C.M.R. 32 (1958); United States v. Fleming, 3 U.S.C. M.A. 461, 13 C.M.R. 17 (1953); accord United States v. Lyles, 14 M.J. 771 (A.C.M.R. 1982). See United States v. Leslie, 11 M.J. 131, 132 (C.M.A.1981).