Opinion of the Court
SULLIVAN, Chief Judge:
During March and April 1989, appellant was tried by a special court-martial composed of enlisted members at Fort Benjamin Harrison, Indiana. Contrary to his pleas, he was found guilty of one specification of engaging in an improper senior/subordinate relationship and two specifications of adultery, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was also found guilty of one specification of failure to obey a lawful order by engaging in an improper senior/subordinate relationship, in violation of Article 92, UCMJ, 10 USC § 892. The members sentenced appellant to a bad-conduct discharge and reduction to the grade of private E-l. The convening authority approved this sentence on August 18, 1989. The Court of Military Review dismissed the order offense noted above; reassessed the sentence in light of this action; but, nonetheless, affirmed the remaining findings and sentence on February 8, 1991.
On September 13, 1991, this Court granted review on the following question:
[25]*25WHETHER THE MILITARY JUDGE ERRED BY OVERRULING DEFENSE COUNSEL’S OBJECTION TO PERMITTING LTC ETHRIDGE AND CSM SMOTHERS TO OFFER THEIR OPINION OF APPELLANT’S REHABILITATIVE POTENTIAL IN THE ARMY WHEN THEIR OPINIONS WERE BASED SOLELY ON THE OFFENSES FOR WHICH APPELLANT WAS CONVICTED.
In view of the Government’s concession of error and our own finding of prejudicial error, we set aside the sentence and order a resentencing in this case. See generally United States v. Pompey, 33 MJ 266 (CMA 1991); United States v. Aurich, 31 MJ 95 (CMA 1990).
At the sentencing portion of this court-martial, defense counsel moved in limine to prevent two government witnesses from testifying against appellant. The record states:
MJ: The Court is in session. All parties to the trial [present] when the court recessed are again present in court. Anything before we call the jury?
DC: Yes, sir, it’s the defense’s understanding that the prosecutor intends to call Lieutenant Colonel Ethridge and Sergeant Major Smothers to the stand in aggravation. It’s the defense’s position that any adverse information or opinion that they have about Sergeant Oquendo resulted from the offense that was charged here or the charges that were previously pending against the accused prior to the trial, and results from exposure to the letters which were seized from the box that has been—the fruits of which have been suppressed. In other words, their opinion has been tainted by the illegal search, and is also the result of the charges that are before the court. Given that, their opinions are (a) not relevant, and (b) should not be admissible because they are based upon and tainted by improperly obtained evidence.
MJ: As I understand your position, Captain Scully, you believe that Lieutenant Colonel Ethridge and Sergeant Major Smothers should not be allowed to testify as to the rehabilitation of the accused since their opinion is based solely on the charges of which the accused has been convicted or the charges which have been withdrawn?
DC: That’s correct, sir.
MJ: And Captain Butler, what’s your position?
TC: Sir, the response is that the question that I’ve asked Colonel Ethridge and Command Sergeant Major Smothers before and I anticipate asking them today is-based on everything you know about the accused, do you feel he has any rehabilitative potential to remain in the service. Now, that encompasses everything they know about these charges, about charges that might have been filed had the letters not been suppressed, about the letters being found and about everything they have personal knowledge of concerning Staff Sergeant Oquendo. And—
MJ: Well, do they—. Would you agree with the proposition that the law is that the witness cannot testify as to rehabilitative potential if his opinion is based solely on the charges of which the accused has been convicted?
TC: Yes, sir.
MJ: Okay. Let’s suppose that the accused had not—-let’s suppose that the evidence had not been suppressed and that the accused was brought to trial on the other charges, and that he’d been convicted of those charges. Would they now be allowed to testify?
TC: Yes, sir, because there were more letters from other trainees that had not been contacted and I think—
[26]*26MJ: You’re saying these letters, which you must remember, of course, I’ve not read any of these letters—
TC: Right, sir.
MJ: —in Appellate Exhibit XIX. Are you saying that there are letters in there other than those pertaining to the Lieutenant that might indicate some misconduct?
TC: Right, sir.
MJ: Are you saying their testimony is based not only on the charges of which the accused has been convicted and the charges that have been withdrawn, but also the other letters which indicate misconduct?
TC: Yes, sir. And one of them specifically is—
MJ: You don’t need to delineate that for me. If that’s your belief, then I’ll allow you to call the witness.
TC: Yes, sir.
MJ: Any comment on that, Captain Scully or Mr. Ortiz?
DC: Only that the evidence—that additional evidence—those additional letters did not form the basis for charges, were none the base improperly seized, and I would submit that it’s impossible to distinguish between the Fouquette incident, or the knowledge about Fouquette, the knowledge about King and the knowledge about these other people. In other words, it’s all a mass of information that has (a) resulted in charges, and (b) been improperly seized. And the opinions are therefore not admissible (a) because they are tainted by that illegal search and (b) because they result from the—essentially from the charges that we are here today on.
MJ: The objection is overruled. Call your witnesses.
Lieutenant Colonel Ethridge testified that, based on everything he knew about appellant, he did not feel appellant had rehabilitative potential to remain in the United States Army. On cross-examination, however, he stated:
Questions by the defense:
Q: Sir, I believe you stated earlier that, prior to discovery of this offense, or these offenses, it was your opinion that Sergeant Oquendo was one of the best NCOs you ever ran across?
A: That’s true.
Q: And what things about him led you to that opinion, sir?
A: I had an opportunity to observe Sergeant Oquendo almost on a daily basis in doing his job as the battalion supply sergeant. He’s energetic; he’s dynamic; you don’t have to tell him twice to get things done; he sees things that need to be done and he goes out and he gets the[m] accomplished.
Command Sergeant Major Russell Smothers also testified as a government witness on sentencing.
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Opinion of the Court
SULLIVAN, Chief Judge:
During March and April 1989, appellant was tried by a special court-martial composed of enlisted members at Fort Benjamin Harrison, Indiana. Contrary to his pleas, he was found guilty of one specification of engaging in an improper senior/subordinate relationship and two specifications of adultery, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was also found guilty of one specification of failure to obey a lawful order by engaging in an improper senior/subordinate relationship, in violation of Article 92, UCMJ, 10 USC § 892. The members sentenced appellant to a bad-conduct discharge and reduction to the grade of private E-l. The convening authority approved this sentence on August 18, 1989. The Court of Military Review dismissed the order offense noted above; reassessed the sentence in light of this action; but, nonetheless, affirmed the remaining findings and sentence on February 8, 1991.
On September 13, 1991, this Court granted review on the following question:
[25]*25WHETHER THE MILITARY JUDGE ERRED BY OVERRULING DEFENSE COUNSEL’S OBJECTION TO PERMITTING LTC ETHRIDGE AND CSM SMOTHERS TO OFFER THEIR OPINION OF APPELLANT’S REHABILITATIVE POTENTIAL IN THE ARMY WHEN THEIR OPINIONS WERE BASED SOLELY ON THE OFFENSES FOR WHICH APPELLANT WAS CONVICTED.
In view of the Government’s concession of error and our own finding of prejudicial error, we set aside the sentence and order a resentencing in this case. See generally United States v. Pompey, 33 MJ 266 (CMA 1991); United States v. Aurich, 31 MJ 95 (CMA 1990).
At the sentencing portion of this court-martial, defense counsel moved in limine to prevent two government witnesses from testifying against appellant. The record states:
MJ: The Court is in session. All parties to the trial [present] when the court recessed are again present in court. Anything before we call the jury?
DC: Yes, sir, it’s the defense’s understanding that the prosecutor intends to call Lieutenant Colonel Ethridge and Sergeant Major Smothers to the stand in aggravation. It’s the defense’s position that any adverse information or opinion that they have about Sergeant Oquendo resulted from the offense that was charged here or the charges that were previously pending against the accused prior to the trial, and results from exposure to the letters which were seized from the box that has been—the fruits of which have been suppressed. In other words, their opinion has been tainted by the illegal search, and is also the result of the charges that are before the court. Given that, their opinions are (a) not relevant, and (b) should not be admissible because they are based upon and tainted by improperly obtained evidence.
MJ: As I understand your position, Captain Scully, you believe that Lieutenant Colonel Ethridge and Sergeant Major Smothers should not be allowed to testify as to the rehabilitation of the accused since their opinion is based solely on the charges of which the accused has been convicted or the charges which have been withdrawn?
DC: That’s correct, sir.
MJ: And Captain Butler, what’s your position?
TC: Sir, the response is that the question that I’ve asked Colonel Ethridge and Command Sergeant Major Smothers before and I anticipate asking them today is-based on everything you know about the accused, do you feel he has any rehabilitative potential to remain in the service. Now, that encompasses everything they know about these charges, about charges that might have been filed had the letters not been suppressed, about the letters being found and about everything they have personal knowledge of concerning Staff Sergeant Oquendo. And—
MJ: Well, do they—. Would you agree with the proposition that the law is that the witness cannot testify as to rehabilitative potential if his opinion is based solely on the charges of which the accused has been convicted?
TC: Yes, sir.
MJ: Okay. Let’s suppose that the accused had not—-let’s suppose that the evidence had not been suppressed and that the accused was brought to trial on the other charges, and that he’d been convicted of those charges. Would they now be allowed to testify?
TC: Yes, sir, because there were more letters from other trainees that had not been contacted and I think—
[26]*26MJ: You’re saying these letters, which you must remember, of course, I’ve not read any of these letters—
TC: Right, sir.
MJ: —in Appellate Exhibit XIX. Are you saying that there are letters in there other than those pertaining to the Lieutenant that might indicate some misconduct?
TC: Right, sir.
MJ: Are you saying their testimony is based not only on the charges of which the accused has been convicted and the charges that have been withdrawn, but also the other letters which indicate misconduct?
TC: Yes, sir. And one of them specifically is—
MJ: You don’t need to delineate that for me. If that’s your belief, then I’ll allow you to call the witness.
TC: Yes, sir.
MJ: Any comment on that, Captain Scully or Mr. Ortiz?
DC: Only that the evidence—that additional evidence—those additional letters did not form the basis for charges, were none the base improperly seized, and I would submit that it’s impossible to distinguish between the Fouquette incident, or the knowledge about Fouquette, the knowledge about King and the knowledge about these other people. In other words, it’s all a mass of information that has (a) resulted in charges, and (b) been improperly seized. And the opinions are therefore not admissible (a) because they are tainted by that illegal search and (b) because they result from the—essentially from the charges that we are here today on.
MJ: The objection is overruled. Call your witnesses.
Lieutenant Colonel Ethridge testified that, based on everything he knew about appellant, he did not feel appellant had rehabilitative potential to remain in the United States Army. On cross-examination, however, he stated:
Questions by the defense:
Q: Sir, I believe you stated earlier that, prior to discovery of this offense, or these offenses, it was your opinion that Sergeant Oquendo was one of the best NCOs you ever ran across?
A: That’s true.
Q: And what things about him led you to that opinion, sir?
A: I had an opportunity to observe Sergeant Oquendo almost on a daily basis in doing his job as the battalion supply sergeant. He’s energetic; he’s dynamic; you don’t have to tell him twice to get things done; he sees things that need to be done and he goes out and he gets the[m] accomplished.
Command Sergeant Major Russell Smothers also testified as a government witness on sentencing. He stated that, “based on everything that he knew about” appellant, he felt that appellant had “absolutely” no “rehabilitative potential to remain in the service.” He also acknowledged appellant’s outstanding military service to the company, prior awards, and performance recommendations.
In his closing argument, trial counsel specifically commented on the testimony of these witnesses, arguing: “He deceived his chain of command, his co-workers, but he didn’t deceive you as panel members and his chain of—his chain of command came in here today and told you that he has no rehabilitative potential to remain in the Army and you should give that testimony the weight due it.”
Appellate defense counsel in this case argues that the testimony of the government aggravation witnesses, Ethridge and Smothers, violated both United States v. Horner, 22 MJ 294 (CMA 1986), and United States v. Ohrt, 28 MJ 301 (CMA 1989). First, he asserts that their opinions on appellant’s total lack of rehabilitative potential were improperly based on the severity [27]*27of the offenses for which appellant was charged and found guilty. Second, he asserts that these prosecution witnesses improperly extended their opinions to include their negative views on appellant’s retention in the armed service. Appellate government counsel disagrees with the above two grounds but concedes the testimony of each of these witnesses was improperly based on unconstitutionally seized evidence. We conclude that admission of this evidence substantially violated the decisions of this Court noted above. See also United States v. Corraine, 31 MJ 102, 106 (CMA 1990).
The second question is whether there was prejudice from the erroneous admission of this testimony. Art. 59(a), UCMJ, 10 USC § 859(a). We note initially that these witnesses were called by the prosecutor in aggravation and their ultimate opinions were unequivocally adverse to appellant. Thus, the Government’s argument that favorable portions of each of these witnesses’ testimony established no prejudice is most unpersuasive. Second, these government witnesses were appellant’s immediate superiors in his command; as such, their views would logically be afforded serious consideration by the court-martial members. Third, appellant offered extensive sentencing evidence in his behalf, including seven witnesses who testified to his prior outstanding military service. Finally, the trial counsel skillfully exploited the testimony of these command witnesses in his closing argument so as to effectively undermine the defense’s sentencing case. In these circumstances, a new sentencing proceeding is required. See generally United States v. Cherry, 31 MJ 1, 6 (CMA 1990).
The decision of the United States Army Court of Military Review as to sentence is reversed. The sentence is set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on sentence may be ordered.
Judges COX, GIERKE, and WISS concur.