Opinion of the Court
DARDEN, Judge:
A change in the Manual for Courts-Martial, United States, 1969 (Revised edition), that became effective on August 1, 1969, permits personnel records that reflect the past conduct and performance of an accused to be considered during deliberations on an appropriate sentence. The Court’s concerns in this case are with whether the regulation that permits such use was promulgated under a permissible delegation of power and, if so, whether the use of the records in this instance complies with the terms of the regulation.
A general court-martial found the appellant guilty on August 29, 1969, of willful disobedience of a superior commissioned officer, assault on a superior officer, assault on one in the execution [37]*37of military police duties, two specifications of assault on noncommissioned officers, and arson. As the record reaches us, his sentence stands as a dishonorable discharge, total forfeitures, and confinement at hard labor for two years.
During the sentencing part of the trial, the trial counsel offered, and the military judge received, records of nonjudicial punishment under Article 15, Uniform Code of Military Justice, 10 USC § 815, and the Enlisted Qualification Record of the appellant. A majority of the Court held in United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970), that consideration during sentencing of records of non judicial punishment was authorized under a valid exercise by the President of a congressional delegation of authority. The use of those records is accordingly not in issue here except for a determination of whether the appellant was harmed by the use of such records in the trial of offenses committed before the effective date of the change in regulations that permitted their use. In this case the Court’s attention is concentrated largely on the use of the Enlisted Qualification Record (DA Form 20).
The Enlisted Qualification Record would not have been admissible if the appellant had been tried before August 1, 1969. Paragraph 75d of the Manual which became effective August 1, 1969, provides:
“Optional matter presented when court-martial constituted with military judge. Under regulations of the Secretary concerned the trial counsel may, prior to sentencing, obtain and present to the military judge any personnel records of the accused or copies or summaries thereof. Summaries of such records will be prepared and authenticated by the custodian thereof as provided in appendix 8g. Personnel records of the accused include all those records made or maintained in accordance with departmental regulations which reflect the past conduct and performance of the accused. If the accused objects to the dáta as being inaccurate or incomplete in a specified material particular, or as containing certain specified objectionable matter, the military judge shall determine the matter. Objections not asserted will be regarded as waived. The accused may submit in rebuttal any matter which reflects on his past conduct and performance. In cases where members determine sentence, the military judge may admit for their consideration any information from these records which reflects the past conduct and performance of the accused.”
The first target of appellate defense counsel is the legitimacy of the exercise of Presidential authority in making such a change, which was accomplished under Article 36, Uniform Code of Military Justice, 10 USC § 836. They assert that the President’s exercise of his rule-making power in this instance is unreasonable and that it conflicts with other Manual provisions and recognized principles of military law. They argue that if the sentencing is by a military judge alone, paragraph 75d permits him to consider any fact that is entered on a personnel record, without regard to the materiality of the fact to sentence determination; if the sentencing is by members of the court, they, too, may consider such facts from a personnel record if the judge determines that they reflect “past conduct and performance.”1 Their contentions are that such consideration violates the rules of relevancy; that the Manual provision permits service regulations to determine the type of information to be considered on sentence; and that derogatory information may be entered on personnel records in such an abbreviated way that it could be misleading.
[38]*38The opinion in United States v Johnson, supra, refers to the wide variety of information available to a United States district judge before he determines an appropriate sentence. That opinion reflects our belief that when a sentencing agency is deciding on an appropriate sentence, information that bears on the past performance and conduct of an accused is relevant to an appropriate sentence.
The purpose of the new paragraph 75d is described as follows in the Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised edition):
“. . . The purpose of this change is to broaden the information to be considered by the sentencing agency in a court-martial. It places upon the Military Judge the burden of determining the relevance of items presented to him and gives him broad discretion in determining relevance and in ruling on the objections to items presented. The procedure contemplated by this change is similar to that under Federal Rule of Criminal Procedure 32, dealing with pre-sentencing reports, but it limits items which may be considered to items contained in official records and accordingly puts the accused on notice of what may be considered against him. The change brings a much needed improvement of sentencing procedure.”
Before the Manual change an accused could introduce favorable material from his service rec-0rd. The prosecution’s use of unfavorable material from the same source does not make the information any less relevant. We reject the contention that the Manual change violates the rules of relevancy.
As to the contention that the Manual provision permits service regulations to determine the type of information to be considered on sentencing, we find that the contention has only a limited support. Although paragraph 75d does not define the categories of information from personnel records of the accused that are relevant to a determination of a proper sentence for him, the personnel records may be only those “made or maintained in accordance with departmental regulations which reflect the past conduct and performance of the accused.” It is clear that where members determine the sentence the military judge may admit for their consideration only the parts of records that reflect past conduct and performance. We find nothing in such a procedure that derogates from the rules of relevancy that have been enunciated by this Court or by the Manual itself.
If the information offered by the prosecution is possibly inaccurate or incomplete because of its abbreviation or for any other reason, the accused or his counsel may object to the introduction and the military judge is required to determine the objection. Paragraph 75d also expressly states the right of the accused to submit in rebuttal any information that reflects on his past conduct and performance. These provisions seem to us to anticipate concern that the records might be so abbreviated as to be misleading.
We are urged that even in those instances where the military judge is sentencing, paragraph 75d
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Opinion of the Court
DARDEN, Judge:
A change in the Manual for Courts-Martial, United States, 1969 (Revised edition), that became effective on August 1, 1969, permits personnel records that reflect the past conduct and performance of an accused to be considered during deliberations on an appropriate sentence. The Court’s concerns in this case are with whether the regulation that permits such use was promulgated under a permissible delegation of power and, if so, whether the use of the records in this instance complies with the terms of the regulation.
A general court-martial found the appellant guilty on August 29, 1969, of willful disobedience of a superior commissioned officer, assault on a superior officer, assault on one in the execution [37]*37of military police duties, two specifications of assault on noncommissioned officers, and arson. As the record reaches us, his sentence stands as a dishonorable discharge, total forfeitures, and confinement at hard labor for two years.
During the sentencing part of the trial, the trial counsel offered, and the military judge received, records of nonjudicial punishment under Article 15, Uniform Code of Military Justice, 10 USC § 815, and the Enlisted Qualification Record of the appellant. A majority of the Court held in United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970), that consideration during sentencing of records of non judicial punishment was authorized under a valid exercise by the President of a congressional delegation of authority. The use of those records is accordingly not in issue here except for a determination of whether the appellant was harmed by the use of such records in the trial of offenses committed before the effective date of the change in regulations that permitted their use. In this case the Court’s attention is concentrated largely on the use of the Enlisted Qualification Record (DA Form 20).
The Enlisted Qualification Record would not have been admissible if the appellant had been tried before August 1, 1969. Paragraph 75d of the Manual which became effective August 1, 1969, provides:
“Optional matter presented when court-martial constituted with military judge. Under regulations of the Secretary concerned the trial counsel may, prior to sentencing, obtain and present to the military judge any personnel records of the accused or copies or summaries thereof. Summaries of such records will be prepared and authenticated by the custodian thereof as provided in appendix 8g. Personnel records of the accused include all those records made or maintained in accordance with departmental regulations which reflect the past conduct and performance of the accused. If the accused objects to the dáta as being inaccurate or incomplete in a specified material particular, or as containing certain specified objectionable matter, the military judge shall determine the matter. Objections not asserted will be regarded as waived. The accused may submit in rebuttal any matter which reflects on his past conduct and performance. In cases where members determine sentence, the military judge may admit for their consideration any information from these records which reflects the past conduct and performance of the accused.”
The first target of appellate defense counsel is the legitimacy of the exercise of Presidential authority in making such a change, which was accomplished under Article 36, Uniform Code of Military Justice, 10 USC § 836. They assert that the President’s exercise of his rule-making power in this instance is unreasonable and that it conflicts with other Manual provisions and recognized principles of military law. They argue that if the sentencing is by a military judge alone, paragraph 75d permits him to consider any fact that is entered on a personnel record, without regard to the materiality of the fact to sentence determination; if the sentencing is by members of the court, they, too, may consider such facts from a personnel record if the judge determines that they reflect “past conduct and performance.”1 Their contentions are that such consideration violates the rules of relevancy; that the Manual provision permits service regulations to determine the type of information to be considered on sentence; and that derogatory information may be entered on personnel records in such an abbreviated way that it could be misleading.
[38]*38The opinion in United States v Johnson, supra, refers to the wide variety of information available to a United States district judge before he determines an appropriate sentence. That opinion reflects our belief that when a sentencing agency is deciding on an appropriate sentence, information that bears on the past performance and conduct of an accused is relevant to an appropriate sentence.
The purpose of the new paragraph 75d is described as follows in the Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised edition):
“. . . The purpose of this change is to broaden the information to be considered by the sentencing agency in a court-martial. It places upon the Military Judge the burden of determining the relevance of items presented to him and gives him broad discretion in determining relevance and in ruling on the objections to items presented. The procedure contemplated by this change is similar to that under Federal Rule of Criminal Procedure 32, dealing with pre-sentencing reports, but it limits items which may be considered to items contained in official records and accordingly puts the accused on notice of what may be considered against him. The change brings a much needed improvement of sentencing procedure.”
Before the Manual change an accused could introduce favorable material from his service rec-0rd. The prosecution’s use of unfavorable material from the same source does not make the information any less relevant. We reject the contention that the Manual change violates the rules of relevancy.
As to the contention that the Manual provision permits service regulations to determine the type of information to be considered on sentencing, we find that the contention has only a limited support. Although paragraph 75d does not define the categories of information from personnel records of the accused that are relevant to a determination of a proper sentence for him, the personnel records may be only those “made or maintained in accordance with departmental regulations which reflect the past conduct and performance of the accused.” It is clear that where members determine the sentence the military judge may admit for their consideration only the parts of records that reflect past conduct and performance. We find nothing in such a procedure that derogates from the rules of relevancy that have been enunciated by this Court or by the Manual itself.
If the information offered by the prosecution is possibly inaccurate or incomplete because of its abbreviation or for any other reason, the accused or his counsel may object to the introduction and the military judge is required to determine the objection. Paragraph 75d also expressly states the right of the accused to submit in rebuttal any information that reflects on his past conduct and performance. These provisions seem to us to anticipate concern that the records might be so abbreviated as to be misleading.
We are urged that even in those instances where the military judge is sentencing, paragraph 75d should be construed so narrowly as to require the trial counsel to obtain an extract of the Enlisted Qualification Record that includes only those items reflecting on military past conduct and performance. Nothing cited in support of such an urging convinces us that the regulation must be so limited.
If a Manual provision deals with a rule of evidence or a procedural question and does not conflict with the Constitution, other law, or other Manual provisions, it is effective. United States v Jenkins, 7 USCMA 261, 22 CMR 51 (1956); United States v Tobin, 17 USCMA 625, 38 CMR 423 (1968). For the reasons discussed earlier, we hold that the issuance of the part of paragraph 75d relating to use of records reflecting past conduct or performance was a proper exercise of [39]*39the President’s powers under Article 36, Uniform Code of Military Justice.
We next reach the issue of whether the scope of the provision is impermis-sibly broad, vague, or ambiguous. Paragraph 75d limits the records that may be presented to a military judge to those “made or maintained in accordance with departmental regulations which reflect the past conduct and performance of the accused.” Two requirements are set: First, the record must be one maintained in accordance with departmental regulations and, second, the record may reflect the past conduct and performance of the accused.
In this case the specific exhibit that was presented to the military judge was the entire Enlisted Qualification Record (DA Form 20). This record contains several categories of information. Because the sentencing was performed by the military judge as a result of an election by the appellant, the military judge was not required to decide the information from the records that reflected the past conduct and performance of the appellant and that could be admitted for consideration by members of the court. Some information on DA Form 20, such as a religious preference, obviously does not reflect past performance or conduct. Since this information was available to the military judge who did pass sentence, did this prejudice the appellant? We believe not. A trial judge, as distinguished from a jury, must be presumed to have exercised the proper discretion in distinguishing between material and immaterial evidence introduced at the trial and to have based his decision only on the former, in the absence of a clear showing to the contrary by the appellant. United States v Menk, 406 F2d 124 (CA7th Cir) (1968). Although consideration by members of the court of irrelevant evidence might be more easily prejudicial, we are satisfied that the military judge was uninfluenced in establishing a sentence by an indication that the appellant was affiliated with a particular denomination.
Because “[i]n general, a record of previous convictions tends to increase the punishment,” this Court decided in United States v Griffin, 19 USCMA 348, 350, 41 CMR 348 (1970), that a new rule on the admissibility of evidence of previous convictions extending beyond three years was inapplicable to the trial of offenses that occurred before the effective date of the new provisions. The Court reached a similar result in United States v Johnson, supra, on the admissibility of records of non judicial punishment. The Government argues that consideration of information from an Enlisted Qualification Record is not intended to increase the punishment but to inform the sentencing agency of the defendant’s background. All the information favorable to an accused is already admissible upon his initiative, however. We are skeptical, therefore, of the Government’s argument on this point. We think a more realistic position is that personnel records reflecting past performance or conduct are unlikely to be offered by the Government unless that past performance or conduct is uncomplimentary. In any event, however, the use of personnel records in the sentencing stage of the trials of offenses occurring before August 1, 1969, should be reviewed for possible effect on the sentence of the accused.
In the case before us we must review for possible prejudice the use of both (1) a record of non judicial punishment and (2) a personnel record showing civilian authorities had once held the appellant for payment of a fine for the offense of possession of alcoholic beverages by a minor. One of the non judicial punishments was for violation of a regulation and damaging a Government-owned footlocker. The other was for an attempted absence without leave. Properly admitted as an additional matter in aggravation was a record of Montgomery’s previous special court-martial conviction for absence without leave, failure to go to his appointed place of duty, and use of disrespectful [40]*40language to a superior noncommis-sioned officer. Considering the nature of these offenses, the unsubstantial character of the erroneously admitted evidence, and the existence of appellant’s prior record of court-martial convictions, we are confident that the improperly used evidence had an imperceptible effect upon the military judge’s determination of a just and adequate sentence in this case. United States v Tipton, 19 USCMA 483, 42 CMR 85 (1970); United States v Young, 19 USCMA 481, 42 CMR 83 (1970); United States v Gauthier, 19 USCMA 482, 42 CMR 84 (1970). Accordingly, we affirm the decision of the Court of Military Review.
Chief Judge Quinn concurs.