(dissenting):
I respectfully dissent. Here the military judge determined factually that the defense had not met the burden of sustaining the challenges for cause of members Plumer and Dempsey. See para. 62h (2), Manual for Courts-Martial, United States, 1969 (Revised edition). The Court of Military Review made a similar factual determination in affirming the sentence. Assuming, without deciding, that the military judge’s ruling constituted such an abuse of discretion as to be an “error of law,” I cannot see how this error “materially prejudices the substantial rights of the accused,” in view of the sentence adjudged * by the members, and particularly in view of the lenient pretrial agreement pursuant to which the sentence was further reduced by the convening authority. Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a).
The majority relies on the fact that the approved sentence included a dishonorable discharge to hold that the error was not harmless. Yet the accused agreed to a plea bargain which expressly provided for a dishonorable discharge.