(dissenting):
Our precedents reflect three general categories of instances in which the court-martial panel-selection process improperly includes or excludes classes of potential members, with different repercussions.
*115A
The first is where classes of potential members consciously are included or excluded for reasons other than to serve the panel-selection interests of Article 25, Uniform Code of Military Justice, 10 USC § 825. Such reasons, as reflected in our case law, include selection of members under the following circumstances: to avoid “light sentences” (United States v. McClain, 22 MJ 124, 126 (CMA 1986)); to include females in trials for sex crimes against female victims (United States v. Smith, 27 MJ 242 (CMA 1988)); and to limit the panel to “commanders and supporters of a command policy of hard discipline” (United States v. Hilow, 32 MJ 439, 440 (CMA 1991)). Because such selection criteria are used with a view towards affecting the result of the court-martial, such use has' been treated as a form of unlawful command influence. See Art. 37(a), UCMJ, 10 USC § 837(a). Unlawful command influence of this sort may be raised for the first time on appeal and leads to reversal for new proceedings unless it can be determined clearly and affirmatively that the proceedings were unaffected. See, e.g., McClain, supra at 132 (any doubt as to propriety of selection “resolved in favor of the accused”).
B
The second category is where classes of members consciously are included or excluded for reasons that purportedly serve the criteria of Article 25 in some shorthand method. Our precedents include the following circumstances: exclusion of all grades E-6 and below and all junior officers (United States v. McClain, supra); selection of only senior noncommissioned officers as the enlisted members of the panel (United States v. Crawford, 15 USCMA 31, 35 CMR 3 (1964)); selection of only lieutenant colonels and colonels as being the most mature and possessing the best judgment (United States v. Greene, 20 USCMA 232, 43 CMR 72 (1970)); and exclusion of all lieutenants and warrant officers (United States v. Daigle, 1 MJ 139 (CMA 1975)).
Such stereotyped and generalized shortcuts toward complying with Article 25 have been held unlawful as violative of that provision, with the exception of an exclusion of pay grades E-l and E-2, which this Court in United States v. Yager, 7 MJ 171 (1979), said was permissible because of the very small possibility that such grades would meet the criteria in Article 25. These cases have not been analyzed in terms of unlawful command influence under Article 37(a), and they must be raised by objection at trial unless evidence is discovered only later. Because these cases involve an improper exercise of command authority, however, our cases have placed the burden on the Government to demonstrate lack of harm, rather than on appellant to prove prejudice.
C
The final category of improper panel selection is where classes of potential members are included or excluded because of some simple, administrative mistake, unrelated to Articles 25 or 37(a). The present ease appears to be in this third category. Here, all grades below E-7 were excluded because of the mistaken belief that appellant was an E-6. The purpose was to exclude any member of the same pay grade as appellant in order to avoid any possibility that such a member might be junior in date of rank to appellant. See generally Art. 25(d)(1) (“When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade.”).
When there has been such an administrative mistake, it does not reflect an intent to affect the court-martial, as with the first category of eases. Moreover, there is no improper shortcut in attempting to apply Article 25, as in the second.
Nonetheless, the improper exclusion of such a class of members constitutes error in the selection process. When such an error is not discovered until after trial, I would agree that reversal is not warranted in the absence of a specific demonstration of unfairness that prejudiced the proceedings.
When, as in this case, the claimed administrative error is discovered prior to com*116mencement of the trial on the merits, the situation is different. In such circumstances, a significant error in the member-selection process has been identified at a point at which it easily can be remedied, but the responsible officials knowingly and willfully have declined to correct the error.
It is well established that members of the armed forces — whose service and sacrifices protect the freedom of the general population — do not enjoy the same extent of constitutional rights as their civilian counterparts. One of the most significant differences is that servicemembers tried by court-martial do not have the right to be tried by a representative cross-section of the military population, which is a fundamental right guaranteed by the Sixth Amendment in civilian trials. Instead, servicemembers are tried by a panel of members personally selected by the commander who has referred the case to trial. Art. 25.
Under these circumstances, it is incumbent upon this Court to scrutinize carefully any deviations from the protections designed to provide an accused servicemember with a properly constituted panel. When a service-member has done all he or she can do by putting the issue in the spotlight and asking for a timely correction, and the Government declines to correct the error, we should not countenance such disrespect for the protections of the rights of members of the armed forces.
In the present case, appellant provided timely notice of the error under circumstances where it could have been readily corrected. Having been rebuffed at trial, he is entitled to have an appellate court give him a new proceeding. I dissent from the majority’s refusal to do so.