(concurring/dissenting):
I concur with the conclusion that the accused did not receive ineffective representation during the trial. However, I must disassociate myself from the holding that the accused received inadequate representation during the post-trial proceedings. Therefore, I dissent.
My fellow judges have decided that trial defense counsel was inadequate as a result of his failure to adequately respond to the review of the staff judge advocate (hereinafter, the review). The perceived inadequacy was the failure to detect the “inaccurate” statement that the accused was not a volunteer for the 3320th Correction and Rehabilitation Squadron (CRS).
My disagreement is grounded on two bases. First, the findings of fact by the majority do not establish inadequate representation, thus, my placing “inaccurate” in quotation marks. Secondly, the majority’s holding, in effect, establishes a mechanical inadequate counsel rule which operates without regard for the presence or absence of prejudice, which is contrary to prior precedents.
I
Discussion of the first basis will be brief. The accused’s comments in the report of the clemency interview are not so clear and unequivocal that one would conclude he was volunteering for the CRS. Thus, I do not view his counsel as remiss in failing to ensure that he understood the accused’s desires. His idea of rehabilitation may have been an immediate return to duty with a suspended discharge.
The second basis requires more discussion. Although fairly implied in the majority opinion, the general rule is not stated outright that the failure of trial defense counsel to correct the error in his Goode response normally constitutes a waiver of the defect. United States v. Goode, 23 U.S. C.M.A. 367, 50 C.M.R. 1 (1975). Otherwise, there would be no need to determine the competency of counsel. This Court, and *512perhaps the Court of Military Appeals, has seen this dilemma grow since 1977, but has never faced it squarely. I will briefly trace its development.
After promulgation of the Goode rule of waiver, there immediately arose the issue of what was waived by a failure to comment and what was not waived. The initial interpretation was provided by United States v. Austin, 2 M.J. 391 (A.C.M.R.1975). Austin concluded that the Goode rule of waiver applied only to adverse matters raised for the first time in the review. We concurred with this view in United States v. Robinson, 1 M.J. 722 (A.F.C.M.R.1975).
However, the dissenter in Robinson would appear to be closer to the mark as well as somewhat of a seer. Placing the waiver rule in perspective, he commented as follows:
[I]t would be enigmatic on the one hand to compel defense counsel, upon penalty of waiver, to assert his objections at trial to matters for which an accused is entitled to protection under the Constitution and military law and, on the other, to allow defense counsel, without fear of waiver, to discover error in the post-trial review and remain silent in the hope of favorable appellate action ... usually ... returning the record for a new review and action ... the result that Goode was intended to eliminate.
United States v. Robinson, supra at 727 (Early, Judge, dissenting). Judge Early believed the Goode waiver rule to apply to all errors generated by the reviewer in the review. Obviously, errors objected to at trial would not be waived under Goode. He also opined that the Goode waiver rule should not be applied in a manner which results in a miscarriage of justice.
Nevertheless, applying Robinson, we held that mislabelling the accused’s plea as “guilty” on the front page of the review was not waived under Goode, United States v. Miller, 1 M.J. 798, 799 (A.F.C.M.R.1976); and, the application of an incorrect standard by which to weigh the evidence was not waived by a failure to comment. United States v. Thompkins, 2 M.J. 1249 (A.F.C. M.R.1976). Thompkins was certified by The Judge Advocate General, Article 67(b)(2), U.C.M.J., 10 U.S.C. § 867(b)(2), but the Court ruled that the staff judge advocate had used the correct standard. Consequently, the question of waiver was not reached. United States v. Thompkins, 5 M.J. 982 (C.M.A.1976).
The Court of Military Appeals provided guidance in United States v. Barnes, 3 M.J. 406 (C.M.A.1977), and also seeded the dilemma with which we now wrestle. Barnes held that the failure of trial defense counsel to comment on the failure of the review to provide the elements of the offense and apply the evidence thereto waived appellate consideration of the defect. Then comes the harbinger:
While Goode recognized by use of the phrase “normally be deemed a waiver,” that a case could arise which involves inadequate representation by counsel where waiver would not be applied, such circumstances are not involved in the present case.
United States v. Barnes, supra at 407.
In a companion case to Barnes, the Court held that failure of trial defense counsel to comment on a summarization of testimony which was subject to both a proper and improper interpretation waived that defect. Counsel’s failure to comment was deemed to reflect a view that the summarization was proper. United States v. Morrison, 3 M.J. 408 (C.M.A.1977). Morrison gave indication that erroneous comments in the review relating to an accused’s reliance on Article 31, U.C.M.J., or whether Article 31 was violated, would not be waived by a failure to comment. United States v. Morrison, supra at n. 1 (Fletcher, Chief Judge, concurring).
Applying Barnes and Morrison, this Court held a failure to comment on reviews’ failures to discuss the affirmative defense of alibi and to fully apprise the convening authority of his discretionary powers on sentence constituted waivers of those defects. United States v. Goner, 4 M.J. 915 (A.F.C.M.R.1978); United States v. Kohler, 4 M.J. 941 (A.F.C.M.R.1978). Interestingly, *513Coner and Kohler viewed Barnes as an expansion of Goode rather than an explanation.
The fact that the convening authority is the level at which an accused stands the best opportunity for relief does not vitiate the Goode waiver rule, for Goode specifically made reference to that principle. Nevertheless, the rule of waiver was promulgated.
However, for whatever reason, we continued to display a reluctance to apply the Goode waiver rule, notwithstanding the defeating of its stated purpose — conservation of appellate resources. See United States v. Smith, 11 M.J. 655 (A.F.C.M.R.1981); United States v. Harvey, 11 M.J. 793 (A.F.C.M.R.1981). We have once again fallen in step with Goode via United States v. Dickerson, 15 M.J. 753 (A.F.C.M.R.1983), which applied Barnes and specifically overruled Smith and Harvey.
It should now be clear that I view the failure of trial defense counsel to comment on the erroneous statement of the accused’s volunteer status as a waiver of the defect. In a similar situation, an equally divided court denied a motion for reconsideration because it deemed waived a failure to comment on the review’s erroneous advice that a sentence in excess of 12 months precluded confinement at the CRS. United States v. Lassiter, 7 M.J. 544 (A.F.C.M.R.1978). The Robinson dissenter ironically found himself again in dissent although his principles had been applied.
Then Chief Judge Early articulated the problem as follows:
I find this action instead of resolving the issue, merely creates a dilemma: is it proper on the one hand to hold the defense counsel to a standard of knowledge that apparently was not shared either by appellate counsel or this Court; or, was his lack of knowledge of the aforementioned regulation [Air Force Regulation 125-18] of such a character that the issue of competency of counsel is raised?
United States v. Lassiter, supra at 545 (Early, Chief Judge, dissenting). Unfortunately, he did not answer the question; instead, he opted for a new review and action.
II
Although United States v. Barnes, 3 M.J. 406 (C.M.A.1977), did not cite United States v. Palenius, 2 M.J. 86 (C.M.A.1977), it cannot be said that the quote from Barnes, above, refers to ineffective counsel only during the trial. The main problem, however, is that if every waiver under Goode constitutes ineffective assistance of counsel, the Goode rule of waiver will be effectively eliminated. I seriously doubt that such a situation constitutes the correct law.
Can it be realistically argued that misstating the accused’s volunteer status is somehow more prejudicial than failing to object to certain evidence at trial, or failing to comment on erroneous statements of the evidence or omitting the elements of the offense? I think not. The former may have impacted the finding of guilt itself. See United States v. Dupree, 1 U.S.C.M.A. 665, 5 C.M.R. 93 (1952). The latter may very well have served to shape the convening authority’s perception of the accused and, as a result, affected the withholding of clemency. See United States v. Kohler, supra.
Concededly, strict application of the waiver doctrine probably means closer scrutiny of defense counsel’s performance. See United States v. Mason, 14 M.J. 92, 95 at n. 5 (C.M.A.1982). But not every error or omission renders counsel inadequate. United States v. Cohen, 2 M.J. 350 (A.F.C.M.R. 1976); and where an act or omission is deemed to be error it should be tested for prejudice. The majority opinion states as much, but either assumes prejudice, or, by implication, presumes it to be inherent in the omission.
Testing for prejudice is not alien to the area of inadequate representation. There is no indication that Palenius precludes assessing a post-trial omission for prejudice. The Court used rather sweeping language in *514Schreck I to the effect that constitutional errors would not require an assessment for prejudice. United States v. Schreck, 10 M.J. 226 (C.M.A.1981). However, in Schreck II, it tested for prejudice prior to remanding the record for further action. United States v. Schreck, 10 M.J. 374 (C.M. A.1981). Although recognizing that the accused is the ultimate loser when defense counsel and the staff judge advocate fail to communicate, the Court in United States v. McAdoo, 14 M.J. 60 (C.M.A.1982), still granted a Court of Military Review the option of reviewing the review and the comments of defense counsel and testing for prejudice or remanding for a new review and action.
Therefore, I conclude that counsel in the case sub judice was not inadequate. He did not abandon his client by inadvertently concurring with the adverse recommendation of the staff judge advocate, United States v. Schreck, supra; or by disclosing disagreement with his client before the action authority. United States v. Radford, 14 M.J. 322 (C.M.A.1982). Even though silence is, at best, a dubious indicator, the Court in Schreck I gave no indication that submitting no comments at all would have constituted incompetency. United States v. Schreck, supra at 228.
Assuming arguendo that this counsel did commit error, the accused has suffered no prejudice. Initially, an accused volunteering for the CRS is, realistically, not a threshold action. It is simply not that determining a factor as to whether a person is confined at the CRS. In fact, rather than a qualifying factor for an accused, the regulatory provision limiting CRS confinees to volunteers may properly be viewed as a restraint on convening authorities — specifically, to deter convening authorities from wasting limited space by attempting to rehabilitate those who have no desire to be rehabilitated.
Secondly, this accused was sentenced to a dishonorable discharge and five years confinement at hard labor. To even qualify for the CRS his sentence required substantial reduction. At any rate, the evidence establishes that he was not a viable candidate for the CRS. Considering the offenses of which he was convicted, there was, and is, little likelihood that the convening authority will designate the CRS as the place of confinement. At first blush, one may view United States v. Siders, 15 M.J. 272 (C.M.A.1983), as requiring a different result; especially note 3 therein. To the contrary, Siders is readily distinguishable.
The trial defense counsel in Siders submitted a Goode reply as well as a personal plea for clemency from the accused, which was lost. The Court held that the accused was entitled to have his plea for clemency considered in haec verba rather than via a cold summary by the staff judge advocate. For purposes of this case, the key point to be drawn from Siders is that it was decided under the accused’s right to have petitions for clemency fully considered by the convening authority. There is a long line of precedents upholding this principle, regardless of the likelihood of the petition’s success. See e.g., United States v. Arnold, 21 U.S.C.M.A. 151, 44 C.M.R. 205 (1972); United States v. Oliver, 42 C.M.R. 906 (A.C.M.R.1970). I believe United States v. Zapata, 12 M.J. 689 (N.M.C.M.R.1981), to have relied on the same principle. That is the vein in which I believe Siders should be applied.
Informing the convening authority that one is a volunteer for the CRS is not on the same level as apprising him of a petition for clemency. Additionally, assessing the likelihood of favorable action is integral to testing for prejudice. United States v. Schreck, supra (Cook, Judge, dissenting).
My final basis for concluding that the accused was not prejudiced is that after erroneously stating the accused was not a volunteer for the CRS, the review proceeded to evaluate the sentence and the surrounding circumstances as though he was, in fact, a volunteer. After reading the review’s section on clemency in its entirety, I am convinced beyond a reasonable doubt *515that the convening authority’s opinion was not altered to the accused’s detriment by the supposed misstatement.
To return this record for a new review and action merely for the staff judge advocate and convening authority to ritualistically reach the same result as initially, is to expend the judicial resources Goode was intended to conserve. To avoid such technical errors in the future, staff judge advocates would perhaps be wise to evaluate each accused’s potential for clemency as if he or she is a volunteer for the CRS — regardless of the true state of affairs.
Accordingly, I would affirm the findings of guilty and the sentence.