(concurring in the result):
I concur in the judgment of the court, but for slightly different reasons from those stated in the lead opinion. Accordingly, I respectfully file this separate opinion.
I would characterize the error in this case as structural. If an error is characterized as “structural,” it is an error that so infects the regularity of the proceedings that it cannot be tested for prejudice. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In a limited number of cases, the structural error is one where harmlessness is irrelevant. See McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). In either case, the error will dictate a reversal of the decision at the trial level. See Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
The error that I see, moreover, is the denial of the opportunity to have Captain (Capt) Bass properly released from representation under Rule FOR CouRTS-MaRtial 505, Manual for Courts-Martial, United States (2005 ed.). R.C.M. 505 sets out specific procedures to follow when an attorney-client relationship in an active case must be terminated. I cannot tell from this record whether those procedures were followed, and, like the majority, I cannot tell what impact Capt Bass’s departure had on the trial of this case.
Comings and goings are facts of military life. It is not unreasonable to suspect that a noncommissioned officer of Marines would have served under a number of commanding and executive officers during his career, *634would have had multiple primary care managers assigned to him, and would have had more than one chaplain for pastoral care. It would not be unreasonable to suspect, then, that when the appellant was told that his detailed defense counsel was leaving active duty, the appellant would have assumed that attorneys are no different from any other professional, especially if his remaining attorneys had not correctly explained why that is not in fact the case. The military judge could have explained to the appellant the difference between waiving counsel for a particular session of the court and severing all ties with the counsel. The counsel’s understanding of the length of his service could have been ascertained. The military judge could have ensured continued representation during the post-trial process until the proper relief occurred under Article 70, UCMJ, 10 U.S.C. § 870. My great frustration in this case is the lack of a factual record of the events culminating in the appellant’s apparent resignation to the absence of Capt Bass from the trial.
Had this matter been properly litigated and preserved, it would have been possible for the appellant to seek immediate relief from our court in the nature of a writ of mandamus to require Capt Bass to continue on the case until its completion. We might or might not have granted the requested relief, but we would not be faced now, after findings and sentence had been announced and the sentence at least partially executed, with the task of picking apart the workings of the defense team in presentation of the case using the cleaver, not the scalpel, of the DuBay1 hearing.
I point out that the relevant concern is as follows: “The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. This phrasing of the test clearly places the burden of demonstrating the effect of the error on the Government, and as the majority notes, the Government has failed to dispel the concern.
I would therefore conclude that structural error occurred in this case and would set aside the findings and sentence. Recognizing that structural errors are rare and that there is a strong presumption that an error is not structural, e.g., United States v. Brooks, 66 M.J. 221, 224 (C.A.A.F.2008)(citing Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)), nonetheless the denial of military due process that the appellant suffered in this case casts doubt, in my mind, on the fairness and regularity of the proceedings.
. United States v. DuBay, 37 C.M.R. 411, 1967 WL 4276 (C.M.A.1967).