(concurring in part, dissenting in part):
I concur in the court’s decision to set aside the sentence, but respectfully dissent from that portion of the opinion setting aside the findings.
Assuming that the appellant was improperly deprived of the full exercise of his statutory right to continuation of an established attorney-client relationship,1 the source of that deprivation was action or inaction from within the defense team resulting in Captain Bass’ improper withdrawal. Articles 27 and 38, Uniform Code of Military Justice, 10 U.S.C. §§ 827 and 838. Although I agree that the military judge’s colloquy with the appellant was insufficient to establish the appellant’s express consent to Captain Bass’ excusal, I disagree with the majority’s con-*635elusion that any assessment of prejudice would be speculative and with the decision to presume prejudice resulting in complete reversal.
Under these facts, we can and should test for prejudice, fully cognizant of the unique and fundamental nature of the right at issue, and the challenges inherent to that assessment. See United States v. Acton, 38 M.J. 330, 336 n. 2 (C.M.A.1993); see also United States v. Wiechmann, 67 M.J. 456, 463 (C.A.A.F.2009).
Assuming without deciding that deprivation of the appellant’s right to continuation of an established attorney-client relationship constitutes an error “of constitutional dimension,” Wiechmann, 67 M.J. at 463-64, I am convinced beyond any reasonable doubt that Captain Bass’ improper withdrawal did not contribute to the findings of guilt and that “the guilty verdict actually rendered in this trial was surely unattributable to [his absence],” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
However, given Captain Bass’ extensive knowledge of the case, probable role in pre-sentencing, and the potential mitigating effect of Dr. Sparr’s testimony, I am not convinced beyond a reasonable doubt that his absence did not contribute to the sentence awarded. Therefore, I would affirm the findings approved by the convening authority, but set aside the sentence and authorize a rehearing on sentence.
Analysis
The majority identifies errors from within and outside the defense team, noting in cases of improper severance by the Government or military judge — we presume prejudice, and where an attorney-client relationship is severed from within, military courts have tested for prejudice. 68 M.J. at 630-31. The majority then presumes prejudice, citing “the significant involvement of parties outside the defense team_” and the challenges inherent to assessing “the actual impact of Captain Bass’ departure.” Id. at 631.
Under these facts, we can and should test for prejudice. We should test for prejudice because the appellant was deprived of his statutory right to continuation of an established attorney-client relationship due to Captain Bass’ improper withdrawal, other defense team action or inaction, and because the appellant was represented by three qualified counsel virtually throughout the proceedings.
The deprivation originated with Captain Bass’ August 2006 voluntary resignation request and defense motion, seven months later, to delay the trial until after his approved release date without disclosure of that fact. It was perfected when he commenced terminal leave on 25 May 2007 and ceased representing the appellant more than two weeks before the hearing on further defense requested delay, partially due to his “release! ].” Appellate Exhibit XLTV.
In addition, the defense team either misinformed, or failed to fully inform the appellant of his right to contest Captain Bass’ departure. Record at 1949, 2002-03; AE CL at 6-7. They also misinformed the military judge that Captain Bass had been “released” or “relieved” as detailed defense counsel at least three times before and during the 11 June 2007 Article 39a, UCMJ, hearing. AE XLIV; Record at 449, 454-55.
At that hearing the military judge informed the appellant of his right to Captain Bass’ presence, but then noted “once [he] leaves active duty, there’s no way the Marine Corps can keep him on as your detailed defense counsel.” Record at 449, 454-55. The appellant acknowledged understanding his rights, claimed to have discussed this issue with lead and associate counsel “[i]n detail” and then responded that he had no objection to proceeding without Captain Bass. Id.
I agree with the majority that this colloquy failed to clarify whether Captain Bass was then on terminal leave, subject to immediate recall, or had been released from active duty, and that the military judge’s comments likely further muddled the appellant’s understanding of the efficacy of objecting to Captain Bass’ absence. I also agree that this colloquy was insufficient to establish the appellant’s express consent to Captain Bass’ excusal and the military judge’s confusing comments render application of the doctrine *636of waiver inappropriate. See United States v. Cutting, 34 C.M.R. 127, 131, 1964 WL 4979 (C.M.A.1964)(“Courts indulge every reasonable presumption against the waiver of fundamental rights”).
However, I respectfully disagree that the military judge’s incomplete inquiry into the appellant’s purported excusal of Captain Bass constitutes “significant involvement” in the loss of his services, somehow converting his improper withdrawal into improper severance by the military judge, and warranting a presumption of prejudice.
In addition, the appellant was represented by three qualified counsel virtually throughout the proceedings including his civilian lead counsel, Mr. J.R. Brannon. Both LtCol Smith and Captain Bass were detailed in the summer of 2006, and LtCol Smith served as associate counsel through trial. After Captain Bass withdrew, LtCol Cosgrove was detailed as his replacement approximately three weeks later, on 15 June 2007, and worked on the case through trial.
Although the military judge and the appellant’s supervisory chain of command failed to take appropriate action to prevent the deprivation, as they reasonably could and should have done, the deprivation was not caused by their actions or omissions. Instead, the deprivation was a direct result of Captain Bass’ noncompliance with the rules of professional responsibility and Rules for Courts-Martial, Mr. Brannon’s and LtCol Smith’s misunderstanding of those rules and poor advice to the appellant, and Captain Bass’ improper withdrawal. Presuming prejudice, the test applicable to improper severance by the military judge or Government, is, in my view, counter to the interests of justice.
Contrary to the majority’s assertion that “we can never rationally assess the actual impact of Capt[ain] Bass’ departure,” 68 M.J. at 631, I believe we can rationally test for prejudice given the record development of specific and general prejudice, weight and credibility of the evidence, and role Captain Bass performed and was expected to perform at trial.
Specific Prejudice
The appellant alleges specific prejudice on findings including potential loss of a complete defense. The majority notes that Captain Bass was developing a theory of post-traumatic stress disorder with an expert consultant, Dr. Sparr, that Dr. Sparr was ultimately dismissed in favor of an expert with less impressive credentials, and then speculates as to what might have happened had the “PTSD theory been further refined.” Id. at 631.
The record reflects that the novel defense theory was not a recognized defense in military jurisprudence and was irrelevant to findings. Dr. Sparr concluded that the appellant’s symptoms were consistent with chronic PTSD and obsessive-compulsive personality traits, and noted parallels between “battered woman syndrome” and this case. AE LXII at 4-5. He opined the appellant and his squad “believed they had to act proactively to diminish the violence against them which was quite literally a matter of life or death ... that [the appellant] was experiencing significant stress by virtue of [ ] subsequent development of PTSD .... [and] [b]ecause [they were] under pervasive and persistent stress (sic) there was no ‘cooling off period. The heat of passion element is encompassed by anger at the Iraqi’s release of [a suspected insurgent] and the subsequent conclusion that one had to kill or be killed.” Id. at 6.
Doctor Sparr’s proposition is not recognized as a special defense in military law, nor does his opinion resemble, even remotely, existing defenses of justification, self-defense, coercion or duress. See Rule for Courts-Martial, 916, Manual for Courts-Martial, United States (2005 ed.); see also United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F.2007)(holding that a military judge required to instruct on special (affirmative) defenses “in issue.”). Even assuming this novel theory could possibly qualify as a defense in the killing of a known or suspected insurgent, it is irrelevant here. In this case, in an effort to demonstrate their seriousness, the appellant and Marines under his charge abducted and killed an unidentified man with no suspected insurgent ties because he was a *637military-aged male who lived near a suspected insurgent, after their plan to kill a suspected insurgent was compromised.
In addition, lead counsel decided against calling Dr. Sparr after concluding his report, which suggested a novel form of justification, was inconsistent with his theory of the case, and after losing confidence in Dr. Sparr due to perceived inappropriate communications with trial counsel while a defense consultant. Record at 2210-13. I am convinced beyond any reasonable doubt that the absence of further refinement of this novel theory and the decision not to call Dr. Sparr did not contribute to the findings of guilt and that “the guilty verdict actually rendered in this trial was surely unattributable to [his absence].” Wiechmann, 67 M.J. at 463-64; see Sullivan, 508 U.S. at 279, 113 S.Ct. 2078.
General Prejudice
The appellant also asserts general prejudice in the loss of Captain Bass’ expertise on findings and the majority alludes to the speculative nature of assessing the impact of that absence. We need not speculate as Mr. Brannon, with the appellant’s consent, made all trial strategy decisions, assigned defense team responsibilities, and testified as to those decisions. Mr. Brannon intended to handle the majority of the merits case with LtCol Smith’s assistance. Record at 2201-02, 2208; AE-CXLI. Captain Bass was assigned to work pretrial motions and with Dr. Sparr, and on the presentencing case. Id. With the possible exception of examining a few witnesses, and any comments he may have offered, this was the extent of Captain Bass’ planned participation on the merits.
Conversely, evidence of the appellant’s intent to kill, including his own admissions, is overwhelming. The appellant planned, led, and executed a conspiracy that resulted in the abduction and death of an Iraqi citizen without provocation by that citizen. The plan included the theft and subsequent planting of an AK-47 and shovel to suggest insurgent activity, contingency planning to abduct and kill any nearby military-aged male in the event their efforts to abduct suspected insur-gentes) was compromised, false radio reports, a full-squad assault with automatic weapons on a bound victim, and ended when the appellant shot and killed a severely wounded person, and then submitted false reports intended to justify his killing.
Conclusion
Under these facts, I am convinced beyond a reasonable doubt that trial on the merits was fundamentally fair. The appellant was availed of his constitutional rights to effective assistance of counsel and counsel of choice, and his statutory right to continuity of counsel with respect to LtCol’s Smith and Cos-grove. He was represented by three counsel at virtually all times, their representation was vigorous, consistent with their theory, and the results on findings “might well be characterized as spectacular” given the overwhelming evidence of premeditation. United States v. Kelly, 16 M.J. 244, 248 (C.M.A. 1983).
Assuming the appellant was improperly deprived of full exercise of his statutory right to continuation of an established attorney-client relationship with Captain Bass and that this deprivation constituted constitutional error, I am convinced beyond a reasonable doubt that Captain Bass’ absence did not contribute to the findings of guilt and that “the guilty verdict actually rendered in this trial was surely unattributable to [his absence].” See Wiechmann, 67 M.J. at 463-64; Sullivan, 508 U.S. at 279, 113 S.Ct. 2078.
. The record includes substantial evidence upon which this court can conclude that "good cause” exists to find Captain Bass’ withdrawal proper, including: Captain Bass’ voluntary resignation and release from active duty prior to trial; defense knowledge of his approved release date before requesting trial delay past his end of active service (EAS) date without mention of that fact; the appellant’s failure to object to Captain Bass' absence though informed of that right by the military judge and Lieutenant Colonel (LtCol) Smith (Record at 449, 454-55, 1949, 2002-03); defense team planning that accounted for Captain Bass’ departure; detail of LtCol Cosgrove within three weeks of Captain Bass’ departure; defense request and grant of additional delay to provide LtCol Cosgrove preparation time; and the appellant being represented by three counsel virtually throughout the process. See Rules for Courts-Martial 505(d)(2)(B)(iii) and 506(c), Manual for Courts-Martial, United States (2005 ed.).