dissent">EARLY, Judge

(dissenting):

I dissent. The error upon which the majority opinion bases its decision to return the case for a new review and action is, in my opinion, of the sort that the mandate in United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1,1 M.J. 3 (1975), was designed to correct. See my concurring and dissenting opinion in United States v. Robinson, 51 C.M.R. 484, 1 M.J. 722 (A.F.C.M.R.1975). I would affirm the findings and sentence.

The accused was tried by special court-martial convened at Peterson Field, Colorado, on 23-24 October 1975, and despite his pleas of not guilty was convicted of two offenses of absence without leave, in violation of Article 86, Uniform Code of Military Justice. He was sentenced to a bad conduct discharge. The convening authority approved the sentence on 5 December 1975. On 23 December 1975, the officer exercising general court-martial jurisdiction approved the sentence. The Court of Military Review, with one dissent, on 4 February 1976, set aside the action of the convening authority and ordered the case returned to the convening authority for a new review and action. This decision was received by The Judge Advocate General on 4 February 1976. 2.

3. It is requested that action be taken with respect to the following issues:

I. “WAS THE COURT OF MILITARY REVIEW CORRECT IN HOLDING THAT THE REVIEW INADEQUATELY ADVISED THE REVIEWING AUTHORITY OF THE PROPER TEST FOR FACTUAL SUFFICIENCY?”

II. “IF THE ANSWER TO THE FOREGOING IS IN THE AFFIRMATIVE, WAS THE COURT CORRECT IN HOLDING THAT THE DEFICIENCY WAS NOT WAIVED BY THE FAILURE OF DEFENSE COUNSEL TO CHALLENGE THE REVIEW AS PROVIDED IN UNITED STATES v. GOODE, 23 U.S.C.M.A. 369, 50 C.M.R. 1 [1 M.J. 3] (1975)?”

Receipt is hereby acknowledged of a copy of the foregoing Certificate of Review on this 11th day of February 1976.

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF MILITARY APPEALS:

1. Pursuant to the Uniform Code of Military Justice, Article 67(b)(2), the record of trial and the decision of the United States Air Force Court of Military Review, in the above-entitled case, are forwarded for review.

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