(dissenting):
I dissent because the first assignment of error has some merit. Prosecution Exhibits *9471 through 3, evidence of three prior nonjudieial punishments, were inadmissible because the record does not show that the accused waived his right to refuse nonjudicial punishment.
The issue has been addressed and resolved in United States v. McLemore, 10 M.J. 238 (C.M.A.1981). I refuse to join the majority in its disregard of applicable precedent. It is not the function of an intermediate appellate court to overturn rules promulgated by a higher court, even if the intermediate court considers the rules to be misguided. Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam opinion). United States v. Heflin, 1 M.J. 131, 132, n. 6 (C.M.A.1975).
The documents used here for the purpose of establishing compliance with United States v. Booker, 5 M.J. 238 (C.M.A.1977), were similar to those used in McLemore, supra. Although they demonstrate that the accused was advised of his right to refuse nonjudicial punishment, they do not reveal what choice he made. In McLemore, the Court of Military Appeals found that these forms were defective because they do not evidence the accused’s election, but that the defect was waived by the defense’s failure to object. The Court stated “... if an objection had been made at trial that none of the exhibits supplied this essential item of information, it should have been sustained and the evidence excluded.” In the case before us, defense counsel made a specific objection at trial. Hence the military judge erred in admitting the evidence.
The majority’s characterization of the holding in McLemore, supra, as dicta is erroneous. Dicta is defined as opinions of a judge which do not embody the resolution or determination of the court or remarks not necessarily involved in or essential to the determination of the case at bar. BLACK’S LAW DICTIONARY 540, 541 (4th ed. 1968). The rule in McLemore is essential to the determination of the case. The Court could not find that error had been waived there, unless it first found that there was error to waive. The majority’s reliance on United States v. Kuehl, 11 M.J. 126 (C.M.A.1981), and United States v. Mack, 9 M.J. 300 (C.M.A.1980), is misplaced. In Kuehl, although the Court did not mention it, the Government introduced evidence of the accused’s written election to accept trial by summary court-martial. In McLemore the Court of Military Appeals specifically considered Mack and reached a conclusion contrary to that of the majority here.
The decision in United States v. Booker, supra, engendered much confusion. Subsequently, in order to end the confusion, the Court of Military Appeals announced rules in McLemore and other cases construing Booker. Today the majority rejects the authoritative construction of Booker in McLemore and returns to the confusion that existed before McLemore was decided. Therefore, I dissent.