(concurring in part and dissenting as to result):
Whereas I agree that the form of the questions asked of Major Kurtz violated RCM 1001(b)(5),* which limits direct testimony of rehabilitation potential to “opinions,” I am concerned that the Court of Military Review would reverse this accused’s sentence. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a).
The accused was tried for disobeying the lawful orders of Staff Sergeant Bridges, a corrections officer at the Fort Leavenworth Disciplinary Barracks, and for assaulting the sergeant while he was performing his duties at the prison.
Under the unique facts presented here, not only did the accused’s obviously outrageous behavior (euphemistically called “uncharged misconduct”) as a prisoner aggravate the offenses; it also represents his “service record” as a prisoner. RCM 1001(b)(2).
This evidence is relevant, probative, and helpful to someone trying to fashion an appropriate sentence for this recalcitrant prisoner. Because the prison records were admissible under the rules, I would remand the case to the Court of Military Review for further review under Article 66, UCMJ, 10 USC § 866.
*0I
Manual for Courts-Martial, United States, 1984.