(dissenting):
I respectfully dissent. In United States v. Ohrt, 28 MJ 301 (CMA 1989), and United States v. Horner, 22 MJ 294 (CMA 1986), we attempted to make it abundantly clear that RCM 1001(b)(5), Manual for Courts-Martial, United States, 1984, allows a witness who has a basis for his conclusion to express an opinion about whether an accused has “rehabilitative potential.” Some persons who have committed less-serious offenses can indeed be “rehabilitated” and made into good servicemembers; others cannot.
If the basis for a witness’ opinion is challenged by the opposing party on cross-examination, then the witness is permitted to present the premise for his position on the record. RCM 1001(b)(5) was designed to allow such action without fouling the record with uncharged misconduct. When a witness’ conclusions are challenged by an opponent, the door is opened wide to admit the fundamental premises of those conclusions, including the good, bad, and indifferent, if such information is relevant.
In Ohrt, the opining witness was an Air Force major. The officer’s premise for his opinion regarding the accused’s rehabilitative potential was the fact that:
(a) He had reviewed Ohrt’s fitness reports; and,
(b) He was aware of some unspecified hearsay evidence concerning alcohol abuse.
Here, the opining witness was a Navy chief petty officer. The noncommissioned officer based his judgment about appellant’s rehabilitative potential on the fact that:
(1) He had personally observed the accused on a daily basis;
(2) He had personally investigated one episode of uncharged misconduct involving accused;
(3) He had personal knowledge of the contents of a Naval Investigative Service (NIS) report involving this accused and the attempted larceny of a female student’s car; and
(4) He had personal knowledge of the two AWOL offenses for which the accused was being sentenced.
Quite frankly, I have never seen a witness who was more qualified to express an opinion under RCM 1001(b)(5) than was this chief petty officer.
I must assume that both my Brothers agree that the noncommissioned officer based his conclusions about this accused’s potential for rehabilitation on factors which became relevant when his position was attacked by defense counsel during cross-examination. Whether the witness’ opinion was based on hearsay is irrelevant. Trial defense counsel is obliged to contest the validity of a witness’ opinion if it is founded on untme hearsay. Here, the witness’ testimony went totally unchallenged by the defense.
The majority opinion, nonetheless, goes on to reverse this case because “admission of the challenged evidence for the different purposes articulated by trial counsel during trial and in his closing argument on sentence was prejudicial error.” 28 MJ at 471. I have already stated my views on this subject in United States v. Kinman, 25 MJ 99, 102 (CMA 1987); however, this case is an extreme application of the rule established there. Even if I agreed with my Brothers that the evidence here may have been considered by the military judge for some other purpose than to determine if the accused had “rehabilitative potential,” the error would be harmless beyond a reasonable doubt, in my judgment.
It is my opinion that Congress most certainly did not intend for this Court to reverse convictions because harmless errors were made during trial proceedings. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a).
The sentence adjudged by this military judge is a standard — if not “guideline”— one used for Navy personnel who jump ship. I am confident that if trial counsel had waived argument, the sentence would have been the same. The sentence was found “appropriate” by the United States Navy-Marine Corps Court of Military Re*476view, and I share that conclusion. I would affirm appellant’s sentence.