(concurring in part and dissenting in part):
I agree with the majority’s analysis concerning the admissibility of Prosecution Exhibit 1 and their conclusion that it was prima facie admissible in this case. However, I disagree with the finding of the majority that there was no ineffective assistance of counsel.
The majority concede that the trial defense counsel had persuasive matters to argue against the admissibility of the nonjudicial punishment for cocaine use. Nevertheless, they conclude that neither the failure to object on the basis of these matters, nor the failure even to present evidence of nonfinality, constituted representation below an objective standard of reasonableness. They do not reach the issue of whether there is a reasonable probability that, but for counsel’s errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I disagree with their analysis.
In order to properly analyze whether trial defense counsel’s representation fell below an objective standard of reasonableness, it is necessary first to examine the significance of this evidence against appellant in aggravation. In my judgment, the severity of the sentence, and in particular, the appropriateness of the bad-conduct discharge, directly rested on the military judge’s knowledge of the existence and nature of the nonjudicial punishment in question. Appellant had a total of 11 years of military service, outstanding evaluations, a recommendation from his superior petty officer that he possessed rehabilitative potential and, except for this nonjudicial punishment, a clean record. The offense of which appellant stands convicted in the instant case, while serious, was extenuated by the circumstances under which it occurred and the lack of any serious harm to the victim. In this situation, evidence of nonjudicial punishment for cocaine use by appellant, then a second class petty officer, twenty days prior to the current offense, is very significant.
How effective, then, was trial defense counsel’s representation given the significance of this evidence? Since appellant pled guilty to the offense of which he was convicted, the defense counsel’s primary responsibility in this case was to minimize the sentence. His entire effort should have concentrated on avoiding a punitive discharge, thereby retaining appellant in the service. He knew or should have known that the key to accomplishing this was to exclude evidence of appellant’s recent nonjudicial punishment. He also knew or should have known that the nonjudicial punishment was on appeal and that the appeal had not yet been decided at time of trial. Examined in this context, I am not persuaded by the majority that the tactics employed by trial defense counsel, in attempting to refute the mast results by ap*1299pellant’s sworn denial, attained the level of an objective standard of reasonableness. This is particularly true given the persuasive argument against admissibility of the mast results.
While there are no cases precisely on point, there exists ample authority from which to conclude that the record of a nonjudicial punishment pending appeal is inadmissible in aggravation. The leading case on admissibility of records of nonjudicial punishment is United States v. Mack, 9 M.J. 300 (C.M.A.1980). Mack was decided on the basis of completeness of the form on which the nonjudicial punishment results were recorded. However, I am convinced that the underlying rationale of this decision was the finality of these results. In connection with Department of the Army (DA) Form 2627 which contains boxes to be checked indicating a choice of whether to appeal a nonjudicial punishment, the Court of Military Appeals stated:
In line with our earlier analysis, a failure to check the boxes indicates that the requirements of Article 15 have not been complied with. In that event, absent independent evidence whether the accused elected to appeal, the DA Form 2627 would be inadmissible because of its incompleteness.
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If an accused checks a box indicating that he appeals, then the record of nonjudicial punishment will be incomplete unless the appropriate blocks are checked by those entrusted with taking appellate action.
Mack, 9 M.J. at 324.
The significance of finality of Article 15 proceedings is clear from this language. The Army Court of Military Review attached similar significance to finality in United States v. Martin, 4 M.J. 852 (ACMR 1978). The Court stated:
In the absence of appellant’s withdrawal of the appeal, he had a statutory right to have it considered whether or not he attacked other matters. [Footnote omitted.] Accordingly, the Article 15 action was incomplete on its face and should not have been admitted into evidence. [Footnote omitted.]
This Court has also recognized the importance of finality of nonjudicial punishment proceedings when we stated:
We believe a clear distinction exists between the situation in this case where mention of appeal is absent and that where the service record book entry indicates an appeal has been made but fails to indicate whether the appeal has been granted or denied. In this latter set of circumstances, this Court has correctly held that a lack of finality appears in the document itself and the entry is not admissible.
United States v. Page, 4 M.J. 683 (NCMR 1977).
While a completeness analysis was used to determine the admissibility of the documents, these cases illustrate the concern of appellate courts that nonjudicial punishment results not be used against an accused until any pending appeal has been adjudicated. I believe that this is the only logical interpretation one can draw from this line of cases. On this basis, trial defense counsel could, and should, have objected to the admissibility of Prosecution Exhibit 1. However, he did nothing.
Not only did he fail to object, he also failed to even bring to the attention of the military judge the fact that an appeal was pending. Even if I were to sanction the “tactics” of trial defense counsel espoused by the majority, at a minimum, it would be absolutely necessary to bring the appeal to the attention of the military judge as an adjunct to appellant’s denial that he used cocaine. One could then argue that the denial was simply an extension of the position undertaken in the appeal which had not yet been decided. This would have added substantial credibility to appellant’s testimony. The tactics employed here, however, ran the very real risk that the military judge believed that the nonjudicial punishment was either not appealed or was final and that appellant was lying in his sworn testimony. Thus, defense counsel’s tactics risked exacerbating an already tenuous position.
*1300I am convinced that trial defense counsel’s representation was neither tactically nor legally sound. I am not able to say that merely bringing the appeal to the attention of the judge would have necessarily changed the result in this case. I can say, however, that had counsel objected to Prosecution Exhibit 1 on the basis of the existing authority cited herein and proved that the nonjudicial punishment was then on appeal, or at least offered to do so, I believe that this evidence would have been excluded. As a result, it is my judgment that there is a reasonable probability that the result would have been different, ie., that no bad-conduct discharge would have been awarded.
Having so concluded, I find that both prongs of Strickland have been met and that there was ineffective assistance of counsel in this case. Accordingly, I would affirm the findings and only so much of the sentence as provides for confinement for 30 days, forfeiture of $150.00 pay per month for one month and reduction to pay grade E-3.
Senior Judge ALBERTSON and Judge RUBENS concur.