(concurring):
I agree with Chief Judge Everett that exclusion of the character evidence proffered by appellant was error, but error which was harmless beyond a reasonable doubt. In my opinion, such a conclusion necessarily justifies affirmance of appellant’s conviction on the basis of Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a). Yet, I likewise share his concern as to the appropriate standard of prejudice required for reversal when this type of error is found by an appellate court not to be harmless beyond a reasonable doubt. In this situation, such a conclusion may not necessarily justify reversal on the basis of Article 59(a). In this light, some comment is warranted, although it is not necessary for the resolution of the present case.
The right of a military accused to introduce pertinent character evidence at a court-martial is expressly provided for in Mil.R.Evid. 404(a)(1). See Art. 36, UCMJ, 10 U.S.C. § 836. The normal standard for reversal for an evidentiary-rule violation is material prejudice to “a substantial right.” Art. 59(a) and Mil.R.Evid. 103(a). To my knowledge, the Supreme Court has not made any specific pronouncement as to whether this evidentiary rule or its counterpart in federal or state evidentiary codes has a constitutional dimension. See Luce v. United States, _U.S. _, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).1 Accordingly, reversal on the basis of this type of error may require a greater degree of prejudice than is required for constitutional error. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Barnes, 8 M.J. 115 (C.M.A. 1979).2 Cf. United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 1981 n. 7, 76 L.Ed.2d 96 (1983).
The decisions of the Supreme Court in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), and Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467 (1896), do not dictate a contrary conclusion. They concerned evidentiary rulings by trial judges in federal courts before Congress enacted a comprehensive code of evidentiary rules for such trials. See 1 Wigmore, Evidence §§ 6.1(4) and 6.2(B) (Tillers rev. 1983). The Supreme Court in these decisions was fashioning evidentiary rules for federal courts, not expounding upon constitutional principles. The following excerpt from Mr. Justice Jackson’s majority opinion in Michelson supports this conclusion:
We end, as we began, with the observation that the law regulating the offering and testing of character testimony may merit many criticisms. England, and some states have overhauled the practice by statute. But the task of modernizing the longstanding rules on the subject is one of magnitude and difficulty which even those dedicated to law reform do not lightly undertake.
The law of evidence relating to proof of reputation in criminal cases has developed almost entirely at the hands of state courts of last resort, which have such questions frequently before them. This Court, on the other hand, has contributed little to this or to any phase of the law of evidence, for the reason, among others, that it has had extremely rare occasion to decide such issues, as the paucity of citations in this opinion to our own writings attests. It is obvious that a court which can make only infrequent sallies into the field cannot recast the body of case law on this subject in *51many, many years, even if it were clear what the rules should be.
We concur in the general opinion of courts, textwriters and the profession that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other. But somehow it has proved a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court. To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice.
The present suggestion is that we adopt for all federal courts a new rule as to crossexamination about prior arrest, adhered to by the courts of only one state and rejected elsewhere. The confusion and error it would engender would seem too heavy a price to pay for an almost imperceptible logical improvement, if any, in a system which is justified, if at all, by accumulated judicial experience rather than abstract logic.
335 U.S. 485-87, 69 S.Ct. 223-24 (footnotes omitted).
Courts of Military Review and appellate counsel who address such evidentiary errors in the future should consider these issues and these concerns noted by Chief Judge Everett.
. See United States v. Lewis, 482 F.2d 632, 636-37 (D.C. Cir. 1973); cf. United States v. Saldivar, 710 F.2d 699, 707 (11th Cir. 1983).
. In the past we have equated this rule with 28 U.S.C. § 2111 and Fed.R.Crim.P. 52(a). See United States v. Ward, 1 MJ. 176, 180 n.9 (C.M.A. 1975). Reconsideration of this comparison and the relationship of Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a), to the standard for constitutional error may be appropriate. See United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 1981 n. 7, 76 L.Ed.2d 96 (1983). Cf. Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 978 n. 2, 74 L.Ed.2d 823 (1983) (Stevens, J., concurring in the judgment).