(concurring):
“On the other hand, it is the duty and responsibility of a court-martial to adjudge a punitive discharge if the members conclude, based upon the evidence before them, that further service is not warranted.” No. Congress intended that a punitive discharge be severe punishment and that it be treated as severe punishment by those who impose it. United States v. Soriano, 20 M.J. 337, 342 (C.M.A.1985), and cases cited therein. It would take a whole lot of proper sentencing instructions —a good deal more than what we have before us in this case, in my view — to remove the presumptive taint of the quoted instruction. Make no mistake about it, in nearly any circumstance other than the precise, and somewhat fortuitous, circumstance of this case, we would be viewing the appellate equivalent of a train wreck.
The circumstance I allude to is the defense election to argue for a bad conduct discharge in lieu of confinement. This election was announced in an Article 39(a), UCMJ, session prior to sentencing instructions. Thus, the election was in no manner influenced by what we all agree was an erroneous instruction. The appellant received a thorough and correct advisement from the military judge concerning the ramifications of a punitive discharge. See United States v. Weikel, 24 M.J. 666, 668 (A.F.C.M.R.1987), pet. denied, 25 M.J. 305 (C.M.A.1987), and cases cited therein. He acknowledged that he understood and that he nonetheless consented to his counsel’s arguing as indicated.
The defense counsel, thereafter, closed his sentencing argument as follows: “He understands that his place is not in the United States Air Force. But he wants to go home now. He wants to start his life over, and he does not want to go into confinement. I ask that you carefully consider a bad conduct discharge with no confinement.” No objection was made to the military judge’s instructions. Ironically, the offending instruction was not inconsistent with the defense sentencing strategy in this case. The appellant’s approved sentence includes a bad conduct discharge and reduction to airman basic. Confinement was not adjudged. In essence, the appellant received the punishment his counsel argued for on his behalf. He suffered no prejudice.
I have reached the bottom line in my analysis of why I conclude that the approved sentence is correct in law and fact. I would be reluctant to premise any evaluation of prejudice on an attempt to determine what sentence result was either likely or unlikely in this case. A special court-martial has limited sentencing authority. In this environment, the bad conduct discharge assumes the central focus more often than not. I do not know what current statistics demonstrate with respect to the imposition of a bad conduct discharge as a component of punishment in special courts-martial. However, I do know that experience over the years has taught many of us that a bad conduct discharge is never preordained in a special court-martial composed of members who are properly instructed. A price we pay for due process is manifested in occasional sentence results that may be seen by some as inadequate. While I might be willing to say that I would have adjudged a bad conduct discharge on a given record, I am very wary of saying what a panel of members was either likely or unlikely to have done in the absence of the error under consideration. Cf. United States v. Ohrt, 26 M.J. 578 (A.F.C.M.R.1988), pet. granted, 27 M.J. 423 (C.M.A.1988), which recognizes that non-commissioned officers convicted of drug abuse are likely to receive punitive discharges. If our case law instructs us that we may consider what was likely to have occurred in assessing sentencing prejudice in a special court-martial with members, then our case law needs to be reevaluated.
On a more theoretical level, the implication of evaluating, after the fact, the inevitability of a punitive discharge leads to the creation in the mind of the reviewer of two classes of appellant. Appellant A’s situation was aggravated. He was likely to have received a bad conduct discharge. He was beyond the point of being prejudiced. Therefore, he is entitled to no sentence relief. Appellant B’s situation was more *802ambiguous in the eye of the appellate beholder. He had a fighting chance of receiving a sentence that did not include a bad conduct discharge. The same error occurred in his trial. He is entitled to appropriate sentence relief. I submit that this formulation does not foster results that are either demonstrably fair or trustworthy.
As reflected by my analysis, I concur in the result reached in the lead opinion.