(dissenting):
I disagree with the holding that appellant “knowingly and intelligently waived his right to conflict-free counsel.” A knowing and intelligent waiver must be premised on accurate and competent legal advice. In United States v. Davis, 3 MJ 430, 434 (CMA 1977), and again in United States v. Breese, 11 MJ 17, 22 (CMA 1981), we endorsed the procedure adopted by the Fifth Circuit in United States v. Garcia, 517 F.2d 272, 278 (1975). In Garcia the court held that in cases of multiple representation,
the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney’s possible conflict of interest and the potential penis of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections.
(Emphasis added.)
In my view, appellant did not receive adequate legal advice from Captain Cantrall, his detailed counsel. Capt Cantrall could not advise appellant about the “details of [his] possible conflict of interest and the potential perils of such a conflict,” because he did not understand the problem. At the hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), he testified that the two cases were not interrelated *463and that he did not see an actual conflict. He perceived only “a possible appearance.” When the military judge asked Capt Cantrall if he would have avoided any areas of inquiry in cross-examining Sergeant Lawrence, Capt Cantrall responded, “I’m not sine I understand your question____” A defense counsel who does not understand the problem cannot competently advise his client regarding it.
In my view, the conflict of interest adversely affected appellant’s defense. After extensive cross-examination, Capt Cantrall finally acknowledged that he could have cross-examined Sgt Lawrence about his motive to lie, based on the fact that appellant had supplied the evidence supporting Sgt Lawrence’s punishment under Article 15, Uniform Code of Military Justice, 10 USC § 815. Sgt Lawrence’s testimony was the Government’s only evidence of intent to permanently deprive. I am not willing, on this record, to find Capt Cantrall’s failure to impeach a key government witness harmless.
I would order a rehearing and give appellant an opportunity to have conflict-free counsel who understands his duty and responsibility to his client.