Opinion of the Court
Darden, Judge:
In the sentencing stage of this case the military judge permitted the prosecution to introduce evidence that the appellant had received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, 10 USC § 815. The military judge also certified that introduced evidence in the form of pages from the service record of the appellant were true copies. The Court’s concern is with the propriety of these two actions.
As the case reaches this Court the appellant has a sentence of a bad-conduct discharge, confinement at hard labor for four months, forfeiture of $82.00 per month for four months, and a reduction to pay grade E-l. This results from a special court-martial’s having found him guilty of two specifications of absence without leave.
A revision of the Manual for Courts-Martia.1, United States, 1969, that took effect on August 1, 1969,1 includes a provision that permits the Secretary concerned to authorize consideration of personnel records during the sentencing part of a court-martial.2 [466]*466The military judge is empowered to determine objections that the data are inaccurate, incomplete, or objectionable on other grounds. The accused may submit material in rebuttal. Acting under this authority the Secretary of the Navy has authorized presentation to the military judge of personnel records of the accused that reflect past conduct and performance of the accused, but records of nonjudicial punishment must relate to offenses committed during the current enlistment and during the two years next preceding the commission of any offense of which the accused stands convicted.3
The grant of permissive authority to present optional material from an accused’s personnel records before sentencing by a court-martial having a military judge has an analogue in the presentence investigation under Rule 32 of the Federal Rules of Criminal Procedure. The information available to the sentencing agent in military practice is still more favorable to an accused than is the procedure followed in the United States district courts, where the presentencing report furnished the judge may include an extensive variety of information. Such information may cover criminal records, Federal Bureau of Investigation reports, local police reports, juvenile records, and military history, together with the nature of discharges, convictions by courts-martial, nonjudicial punishments, and personnel files. (The Presentence Investigation Report, Administrative Office of the United States Courts, Publication No. 103, 1965.) Use of such presentencing reports has been held not to violate due process (Williams v New York, 337 US 241, 93 L Ed 1337, 69 S Ct 1079 (1949)), even though there are no limitations on the content s of the reports (Gregg v United States, 394 US 489, 22 L Ed 2d 442, 89 S Ct 1134 (1969)), and the contents of the report need not be disclosed to the defendant (United States v Conway, 296 F Supp 1284 (DC DC) (1969)).
Although the use of records of Article 15 punishment seems completely consistent with the practice in United States district courts, our decision depends on whether the provision for the use of evidence of nonjudicial punishment before sentencing is a valid exercise by the President of a congressional grant of authority. Article 36, Uniform Code 0f Military Justice, 10 USC § 836, authorizes the President to prescribe procedure, including modes of proof, in cases before courts-martial. So far as the President considers practicable, this procedure and the modes of proof should apply the principles of the law and the rules of evidence generally recognized in the trial of criminal eases in the United States district courts. Rules prescribed under this authority have the force of law unless they conflict with other provisions of the Code or Manual or another recognized principle of military law. (United States v Villasenor, 6 USCMA 3, 19 CMR 129 (1955).)
The appellant’s counsel vigorously asserts that a military judge’s decision to admit proof of nonjudicial punishment conflicts with the congressional intent attending enactment of Article 15.
As originally enacted as a part of the Uniform Code, Article 15 provided authority for military commanders to impose nonjudicial punishment for minor infractions of discpiline. (Act of May 5, 1950, chapter 169, 64 Stat 107.) But the authority for nonjudicial punishment precedes the 1950 Code by many years.4 Because of restrictions on the extent of the punishment authorized, the authority enacted in 1950 proved to be of limited usefulness as a substitute for trial by summary or special court-martial.5 [467]*467The 1962 amendment to Article 15 increased the punishments authorized to approximately those that could be awarded by a summary court. (Act of September 7, 1962, Public Law 87-648, 76 Stat 447.) Except for those attached to or embarked in a vessel, members of the armed forces were given the statutory right to demand trial by court-martial instead of nonjudicial punishment under Article 15. (Section 815(a), Title 10, United States Code; Act of September 7, 1962, supra.) The Senate Report on the 1962 amendment declares:
“. . . The bill, by providing increased authority for nonjudicial punishment, will enable commanders to deal promptly and efficiently with problems of discipline. At the same time, the increased nonjudicial authority should permit the services to reduce substantially the number of court-martials for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.” [Senate Report No. 1911, August 23, 1962, 87th Congress, Second Session.]
Our attention is invited to statements in the hearings on the 1962 amendments (Hearings on H. R. 7656 before House Armed Services Committee, 87th Congress, First Session) that among the purposes the amendment to Article 15 was expected to accomplish were: (1) Avoidance of staining the record of a member of the armed forces with a criminal conviction, and (2) to “affect the matter of discharges under other than honorable conditions, which many times are based on the number of court-martials received.”
An Article 15 punishment is not a conviction; it does not empower a court-martial to adjudge permissible additional punishments under Section B of the Table of Maximum Punishments. (Paragraph 127c, Manual for Courts-Martial, United States, 1969 (Revised edition).)
We perceive nothing in the legislative history of Article 15 that is inconsistent with use of records of the nonjudicial punishment by a court-martial
when it is deliberating on an appropriate sentence. There is abundant evidence that Congress desired an alternative to the handicaps resulting from a record of conviction by court-martial. But nothing cited convinces us that Congress intended for the armed forces not to record nonjudicial punishment or to conceal a record of it if a person who had received such punishment later were tried by court-martial. Statements that such records should not be used as evidence of prior convictions reflect an awareness that nonjudieial punishment would not be considered a conviction, instead of tha1 it would not be considered at all.
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Opinion of the Court
Darden, Judge:
In the sentencing stage of this case the military judge permitted the prosecution to introduce evidence that the appellant had received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, 10 USC § 815. The military judge also certified that introduced evidence in the form of pages from the service record of the appellant were true copies. The Court’s concern is with the propriety of these two actions.
As the case reaches this Court the appellant has a sentence of a bad-conduct discharge, confinement at hard labor for four months, forfeiture of $82.00 per month for four months, and a reduction to pay grade E-l. This results from a special court-martial’s having found him guilty of two specifications of absence without leave.
A revision of the Manual for Courts-Martia.1, United States, 1969, that took effect on August 1, 1969,1 includes a provision that permits the Secretary concerned to authorize consideration of personnel records during the sentencing part of a court-martial.2 [466]*466The military judge is empowered to determine objections that the data are inaccurate, incomplete, or objectionable on other grounds. The accused may submit material in rebuttal. Acting under this authority the Secretary of the Navy has authorized presentation to the military judge of personnel records of the accused that reflect past conduct and performance of the accused, but records of nonjudicial punishment must relate to offenses committed during the current enlistment and during the two years next preceding the commission of any offense of which the accused stands convicted.3
The grant of permissive authority to present optional material from an accused’s personnel records before sentencing by a court-martial having a military judge has an analogue in the presentence investigation under Rule 32 of the Federal Rules of Criminal Procedure. The information available to the sentencing agent in military practice is still more favorable to an accused than is the procedure followed in the United States district courts, where the presentencing report furnished the judge may include an extensive variety of information. Such information may cover criminal records, Federal Bureau of Investigation reports, local police reports, juvenile records, and military history, together with the nature of discharges, convictions by courts-martial, nonjudicial punishments, and personnel files. (The Presentence Investigation Report, Administrative Office of the United States Courts, Publication No. 103, 1965.) Use of such presentencing reports has been held not to violate due process (Williams v New York, 337 US 241, 93 L Ed 1337, 69 S Ct 1079 (1949)), even though there are no limitations on the content s of the reports (Gregg v United States, 394 US 489, 22 L Ed 2d 442, 89 S Ct 1134 (1969)), and the contents of the report need not be disclosed to the defendant (United States v Conway, 296 F Supp 1284 (DC DC) (1969)).
Although the use of records of Article 15 punishment seems completely consistent with the practice in United States district courts, our decision depends on whether the provision for the use of evidence of nonjudicial punishment before sentencing is a valid exercise by the President of a congressional grant of authority. Article 36, Uniform Code 0f Military Justice, 10 USC § 836, authorizes the President to prescribe procedure, including modes of proof, in cases before courts-martial. So far as the President considers practicable, this procedure and the modes of proof should apply the principles of the law and the rules of evidence generally recognized in the trial of criminal eases in the United States district courts. Rules prescribed under this authority have the force of law unless they conflict with other provisions of the Code or Manual or another recognized principle of military law. (United States v Villasenor, 6 USCMA 3, 19 CMR 129 (1955).)
The appellant’s counsel vigorously asserts that a military judge’s decision to admit proof of nonjudicial punishment conflicts with the congressional intent attending enactment of Article 15.
As originally enacted as a part of the Uniform Code, Article 15 provided authority for military commanders to impose nonjudicial punishment for minor infractions of discpiline. (Act of May 5, 1950, chapter 169, 64 Stat 107.) But the authority for nonjudicial punishment precedes the 1950 Code by many years.4 Because of restrictions on the extent of the punishment authorized, the authority enacted in 1950 proved to be of limited usefulness as a substitute for trial by summary or special court-martial.5 [467]*467The 1962 amendment to Article 15 increased the punishments authorized to approximately those that could be awarded by a summary court. (Act of September 7, 1962, Public Law 87-648, 76 Stat 447.) Except for those attached to or embarked in a vessel, members of the armed forces were given the statutory right to demand trial by court-martial instead of nonjudicial punishment under Article 15. (Section 815(a), Title 10, United States Code; Act of September 7, 1962, supra.) The Senate Report on the 1962 amendment declares:
“. . . The bill, by providing increased authority for nonjudicial punishment, will enable commanders to deal promptly and efficiently with problems of discipline. At the same time, the increased nonjudicial authority should permit the services to reduce substantially the number of court-martials for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.” [Senate Report No. 1911, August 23, 1962, 87th Congress, Second Session.]
Our attention is invited to statements in the hearings on the 1962 amendments (Hearings on H. R. 7656 before House Armed Services Committee, 87th Congress, First Session) that among the purposes the amendment to Article 15 was expected to accomplish were: (1) Avoidance of staining the record of a member of the armed forces with a criminal conviction, and (2) to “affect the matter of discharges under other than honorable conditions, which many times are based on the number of court-martials received.”
An Article 15 punishment is not a conviction; it does not empower a court-martial to adjudge permissible additional punishments under Section B of the Table of Maximum Punishments. (Paragraph 127c, Manual for Courts-Martial, United States, 1969 (Revised edition).)
We perceive nothing in the legislative history of Article 15 that is inconsistent with use of records of the nonjudicial punishment by a court-martial
when it is deliberating on an appropriate sentence. There is abundant evidence that Congress desired an alternative to the handicaps resulting from a record of conviction by court-martial. But nothing cited convinces us that Congress intended for the armed forces not to record nonjudicial punishment or to conceal a record of it if a person who had received such punishment later were tried by court-martial. Statements that such records should not be used as evidence of prior convictions reflect an awareness that nonjudieial punishment would not be considered a conviction, instead of tha1 it would not be considered at all.
Counsel for the appellant contends further that Burgett v Texas, 389 US 109, 19 L Ed 2d 319, 88 S Ct 258 (1967), compels a holding that since the appellant did not have the right to lawyer-counsel during the Article 15 proceedings, the Constitution prohibits the record of such punishment from being used in the consideration of a sentence. This argument has at least two weaknesses. First, Burci°h• deals with a conviction obtained in violation of the right to counsel; for Article 15 proceedings, no court has held that there is a right to counsel. Second, Burgett involved a recidivism-statute under which the limit of punishment was increased upon proof of a previous conviction; as we have pointed out earlier, nonjudicial punishment is not a conviction and it has no effect on the maximum sentence authorized for any court-martial offense. (Paragraph 127c, Section B, Manual, supra; United States v Green, 20 CMR 606 (AFBR 1955).)
Next we must consider the effective date of paragraph 75d of the Manual for Courts-Martial, United States, 1969 (Revised edition). Executive Order 11476, 3 CFR, 1969 Compilation, page 132, provided that with certain exceptions the Manual would apply to “all court-martial processes” after August 1, 1969. One of the exceptions was [468]*468that “the maximum punishment for an offense committed prior to August 1, 1969, shall not exceed the applicable limit in effect at the time of the commission of such offense.” United States v Griffin, 19 USCMA 348, 41 CMR 348 (1970), which concerned the effective date of Manual changes broadening the standards for the admission of evidence of previous convictions against the accused in connection with the sentence, construed the words “applicable limit”6 of punishment in that context as evidencing an intent that the changes not have the practical effect of operating to increase the limit of punishment from that to which the accused was subject at the time of the offense. The effect of using a record of Article 15 punishment is in this respect indistinguishable from the use of evidence of previous convictions.
In United States v Worley, 19 USCMA 444, 42 CMR 46 (1970), the Court pointed out that in legal contemplation a person committing an offense after January 1, 1969, did so with notice of the new provisions. Johnson was found guilty of two offenses, the first an absence without leave from October 21 to 23, 1968, and the second an absence without leave from October 26, 1968, to June 27, 1969. Absence without leave is not a continuing offense. (United States v Bruner, 11 USCMA 658, 29 CMR 474 (1960).) Consequently, both of the offenses occurred before the effective date of the 1969 Manuals. Under the holdings in United States v Griffin, supra, and United States v Worley, supra, the introduction of the record of Article 15 punishment was erroneous. The record of Article 15 punishment that was introduced was for disobeying a direct order, in violation of Article 91, Uniform Code of Military Justice, 10 USC § 891. Since there is nothing to reassure us that the severity of the sentence was unaffected by the error in this case, we must hold that it was prejudicial.
A second issue relates to the action of the military judge in certifying that Prosecution Exhibits 1 and 4 are true copies. At trial, counsel stipulated that Prosecution Exhibits 1 and 4 were true copies of authentic pages taken from the service record of the appellant. Both exhibits were certified to be true copies by the military judge. The appellant contends that this certification occurred before trial and that the military judge’s action made him a witness for the prosecution in violation of paragraph 4e, Manual for Courts-Martial, United States, 1969 (Revised edition). This Court has held that a member of a court-martial who certified before trial a true copy of a previous conviction of the accused was a witness for the prosecution. (United States v Moore, 4 USCMA 675, 16 CMR 249 (1954).)
Paragraph 63 of the Manual includes as a witness “a person who by his certificate has attested or otherwise authenticated an official record introduced in evidence by the prosecution, or who has authenticated any writing so introduced, is a witness for the prosecution even if he does not testify in person.” Article 26(d), Uniform Code of Military Justice, 10 USC § 826, provides: “No person is eligible to act as a military judge in a case if he is the accuser or a tvitness for the prosecution or has acted as investigating officer or a counsel in the same ease.” (Emphasis supplied.)
The Government asserts that the military judge certified the exhibits attached to the record after the trial as part of his duties in authenticating the record of trial. This assertion is supported by an affidavit of the military judge submitted separately by motion to this Court.
In its definition of a witness, paragraph 63 of the Manual refers to “a person who . . . has attested ... or who has authenticated.” (Emphasis supplied.) The emphasized verb-[469]*469forms apparently are intended to define as a witness only a person whose attestation or authentication occurred before trial. If in fact a military judge had certified the exhibits before trial there would have been no need for the stipulation that was entered into in open court during the trial. The military judge’s post-trial attestation of copies of records was not error.
The decision of the Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing on the sentence may be ordered.
Chief Judge Quinn concurs.