concurring in the result:
Although my brothers and I are not in substantial disagreement concerning this case, and indeed are in complete agreement regarding its ultimate disposition, I write separately to note an area in which it appears that my approach is slightly at variance with theirs.
At the outset, I note that United States v. Horner, 22 M.J. 294 (C.M.A.1986) was decided several weeks after this case was tried. It is hardly surprising, therefore, that the parties to the trial were not well informed as to its holding and principal substantive significance. Because it is clear that our high court intended that the rule of that case be applied to cases pending appellate review, we are obliged to determine its impact, if any, upon the case at hand.
My understanding of United States v. Horner is that an evidentiary problem arises only where the witness’s opinion of the accused’s rehabilitative potential is based solely upon the severity of offense(s) of which he or she was convicted. The facts of that case were quite unique in that the commander-witness in effect took the position at trial that he was unwilling to consider other relevant presentencing factors, such as the accused’s character, duty performance, military service record, etc. “Specifically, the commander felt that no one who distributed drugs should be retained in the service, ‘[r]egardless of the characteristics of the individual involved.’ ” Id. at 295.
In contrast, the record of trial in this case reflects that the presentencing testimony of both First Sergeant Wilson and Captain Harter was predicated upon (1) their personal observations of the appellant’s duty performance in the unit over a period of time (characterized as “outstanding” and “excellent,” respectively), and (2) reports from others regarding his duty performance. Accordingly, I cannot agree that the trial judge committed a Homer -type error by allowing inadmissible aggravation evidence to be adduced by counsel. I hasten to add that, in reaching this conclusion, I have acted in consonance with my strongly held view that the ultimate inquiry concerning the accused’s rehabilitative potential can properly be analyzed only in the broader context of the foundational testimony which has preceded it.
In his presentencing instructions to the members, however, the trial judge undertook to summarize the aggravation evidence and succeeded in doing so in a manner which tended to perfect an evidentiary error of the Homer type. I agree with the majority that this latter error was not preserved for appellate review, that it was not egregious and does not rise to the level of plain error, and that the findings of guilty and the sentence should be affirmed. I join in effecting that result.