(concurring in part and dissenting in part) :
I dissent from the view of my brethren as to the propriety of applying the doctrine of waiver to the facts of the instant case. In United States, v. Clay, (No. 49) 1 CMR 74, decided November 27, 1951, this Court determined unanimously that the right of accused persons to trial by court adequately instructed by the law officer on the principles of law applicable to his case is derived from “one of the historic cornerstones of our system of civil jurisprudence,” and is safely within the concept of “military due process of law,” secured by the Uniform Code of Military Justice. Today my two colleagues have held that Smith’s right to this element of “military due process” was waived by the action of counsel assigned to defend him at the trial. I am much afraid that the attitude this approach reflects will lead inexorably to a future course of decision based almost wholly on a theory of waiver. For this reason I am compelled vigorously to disassociate myself from it.
Accepting as we must — unless Clay is to be overruled — that the right of an accused person to proper and adequate instructions is one of prime, basic, and fundamental importance, we must exercise care to avoid acceptance of every suggestion of waiver. Although, concededly, the privilege to object to instructions given, refused or omitted may be the subject of waiver, United States v. Strong, (No. 244), 5 CMR 55, decided August 27, 1952, waivers of substantial rights “are not lightly to be accepted.” United States v. Evans and Parker, (No 457), 4 CMR 133, decided August 8, 1952. We have not heretofore been receptive to arguments based on waiver, and advanced in cases involving precisely the right involved here. United States v. Russell L. Williams, (No. 133), 2 CMR 92, decided February 21, 1952; United States v. Cromartie, (No. 374), 4 CMR 143, decided August 6, 1952; United States v. Strong, supra. This is, in fact, the first case of this nature in which the Court' has been willing to accept the principle of waiver, as the basis for its decision. It is, therefore, one of genuinely landmark character.
There is no doubt that at some indeterminate future time — when the recently adopted provisions and practices of the Uniform Code and the 1951 Manual have become fully settled, and have been accepted wholeheartedly by all elements of military command — we may and perhaps should relax what I regard as the attitude towards waiver enjoined upon us by stern duty at this time. Whether our approach to fundamental rights of the sort here involved should ever be relaxed need not, of course, be decided now. In addition, whatever the eventual attitude of this Court may be, I am inclined to doubt that it should ever hope to adopt a waiver position identical with that found in many civilian jurisdictions. This Court and those below us^are tribunals charged with the administration of military justice — and this single distinguishing factor will ever require sharp procedural differences from civilian counterparts.
Several factors cannot be forgotten in this connection, but must be considered honestly and realistically. Military defendants, particularly those in overseas theaters, are represented almost universally by assigned counsel and, in fact, are rarely able, for one compelling reason or another, to secure the services of civilian lawyer's. Grave practical difficulties, indeed, often beset the path to securing individual military counsel. In special court-martial cases, assigned counsel today need not at all be qualified attorneys — and frequently are not. In truth, in some services— and in certain situations in all services — they are not almost invariably— this for what are believed to be pressing reasons of practical necessity. The tremendous importance of this latter observation’s bearing on the present problem can hardly be overemphasized —for, if we make law at all, we make it for every tribunal below us in the pyramid. Additionally, it must not be *447forgotten that, until the present Uniform Code ^vent into effect less than two years ago, it was not a requirement of military la%o that counsel at the bar of even a general court-martial need be lawyers. Not unnaturally, under this former regime — and for the soundest of reasons — the doctrine of waiver played a virtually nonexistent role, and errors were freely considered on appellate review without any sort of regard to their preservation below. Today, of course, and fortunately, counsel in general courts-martial — where cases involving more serious criminal offenses are tried — must be lawyers, and The Judge Advocates General of the several services, together with their senior officers, are attempting to meet new and heavy responsibilities in a fashion which is warmly admirable and increasingly successful. However, granting the best will in the world, the task of complete conformity to the demands of the new system has not yet been fully accomplished — as, I am sure, service authorities will acknowledge as readily as I. A tradition ingrained in command for a century and a half is not to be wholly dissipated in a matter of months!
Moreover, we must not omit from our thinking the collateral character of the assignment as court-martial counsel in many instances, and the extremely difficult — often emergency — conditions under which this onerous duty is performed, particularly in overseas, and certainly in combat, areas. All of these factors must be taken into account — ■ not critically, but understanding^, and with a genuine appreciation of the problem involved. Considering them, together with others of a relatively minor character, I am not inclined to believe as a general proposition — and quite apart from the immediate situation before us — that accused persons should be held completely accountable, just yet at any rate, for the representations and other conduct of assigned military counsel. It will not be denied, I am sure, that the run-of-the-mill of these latter are, at present and inescapably, young in years, junior in military grade, and without substantial professional experience in the civilian community.
Extended logically, the position of the majority of the Court here places a tremendously heavy — perhaps the primary — responsibility for ensuring justice in the military scene on the shoulders of defense counsel. Under the majority’s approach, the law officer may proceed in the trial’s administration with virtual impunity, secure in the knowledge that this Court will refuse to examine errors, however serious, un-objected to by defense counsel at the trial. As I see it, it is — or should certainly be at present — the law officer himself who carries the major burden of guaranteeing that justice is done at the trial level in all cases. The majority allows him to abdicate this all-important function. This Court — my brothers appear to overlook — has two principal duties: (1) To establish a sound decisional framework for operations under the Code and the Manual. (2) To ensure that essential justice has been dispensed in every case that comes before it. Neither of these two branches of its function should be sacrificed in the service of the other — each is of equal importance. The opinion and decision in this case — as I see it — advance neither. In fact they accomplish quite the reverse.
Of course, two avenues are available which lead to the establishment for the military of a legal system as like that of civilian courts as possible. One — apparently that chosen by my brethern— involves the adoption of the position that the system is now established, full-blown and mature, and must be regarded and treated as such. Thus, defense counsel are required to take affirmative and definite positions with regard to instructions, with the result that, on failure to do so, otherwise valid objections are waived and forever barred from consideration on appeal. The premise for the adoption of this approach of strict waiver is that such austerity will result in the correction of current deficiencies of defense counsel. The overriding difficulty with this basis is simply and plainly that it puts the cart before the horse. It assumes the existence of an incentive prompting defense counsel to take heed of our severity. I am unable to perceive the source and nature of that incentive in the current *448state of judicial maturity in the court-martial system, and elsewhere in military-legal thinking.
The second highroad — and the one I much prefer — involves affording accused persons the benefit of the doubt, and, except where objection is specifically required by Code or Manual, reviewing here all possible errors reflected in the record, even though not expressly preserved by objection — save where it is perfectly clear that an informed choice was made by defense counsel. This course is, I submit, the' surest pathway to the end we seek, and one much less harmless to individual rights during the course of development. If officials at the trial level — and particularly the law officer — know that we stand ready to review errors not necessarily preserved by civilian technical niceties,- there is an incentive to comply with the law — the prompting of á desire not to be reversed on appeal. And this is a reasonably powerful spur.
With these observations, I turn to the instant case. As has been suggested, where fundamental rights are concerned — such as the one here involved — I had thought that we had previously agreed that the conduct asserted to constitute a waiver must be such as evidences a knowing action, a “relinquishment of rights” with full understanding of the consequences. Waivers of such rights “are not lightly to be accepted.” United States v. Evans and Parker, supra; Johnson v. Zerbst, 304 US 458, 464, 82 L ed 1461, 1466, 58 S Ct 1019, 146 ALR 357. In United States v. Strong, supra, defense counsel, in response to the law officer’s inquiry whether either counsel had additional instructions or suggestions, stated merely; “The defense does not.” In the case at bar, however, defense counsel replied: “The law officer has adequately covered the instructions in the case.” There is certainly a difference — for the response of defense counsel here has distinctly an affirmative ring, wanting in that of defense counsel in the Strong case. However, the language of counsel in the instant case must be evaluated in its proper setting.
The statement of defense counsel here was made in an overseas theater on August 6, 1951, approximately two months after the effective date of the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1951 — and long before this Court had spoken in a single case on the subject of instructions. The requirement of instruction by the law officer in open court concerning the elements of the offense charged was one of the substantial and striking innovations in military judicial procedure provided by the Code and Manual. Under the older practice, where the law member participated in the court’s closed session deliberations, he was ever present to advise other members on the elements of the offense. Manual for Courts-Martial, U. S. Air Force, 1949, paragraph 40. In opinions of this Court we have repeatedly made clear the mandatory character of the duty of the law officer to give proper instructions, and have explicitly recognized the paramount importance of the right of accused persons to have the court charged* as demanded by the Code and current Manual. Is there the slightest indication, circumstantial or otherwise, that defense counsel here properly understood the consequences of his affirmative declaration ? I am sure that there is none whatever. True, he did suggest at one point in his closing argument that the law officer would instruct members of the court on the elements of larceny— but this means little in face of his ultimate affirmance of the law officer’s complete abdication of the duty to instruct. At that time defense counsel may well have regarded the obligation to charge as of but slight importance — for indeed both the convening authority and the board of review, which considered a similar problem in United States v. Clay, supra, concluded that the erroneous instructions in that case did not operate to the substantial prejudice of the accused for the reason that there was sufficient evidence of guilt in the record. We there rejected this view emphatically on the ground that the right to have the court instructed fully was one of those rights secured to all accused military personnel by the Code’s guarantee of “military due process.”
*449The net of these comments is that I cannot at all regard the questioned statement of defense counsel here as a “waiver” because it is highly improbable that it was made with any sort of appreciation of its possible consequences. It is certainly not my intention to imply that an erroneous calculation by counsel as to the effect of trial action will excuse in all cases. However, during the initial stage of the current dispensation of military justice, and especially in the present case, I must refuse in the interest of individual rights, to erect barriers against an accused through action of counsel, of ■necessity without full opportunity at the time to grasp the significance of one of the most important contributions of that scheme.
It appears that my analysis of the present problem is supported by the following quotation from the 1951 Manual, found in paragraph 154d, at page 297:
“The prosecution or the defense may in open court either orally or in writing waive an objection to the admissibility of offered evidence. Such a waiver adds nothing to the weight of the evidence nor to the credibility of its source. The court in its discretion may refuse to accept, and may permit the withdrawal of, any such waiver. There is no prescribed form for making a waiver. Thus, if it clearly appears that the defense or prosecution understood its right to object, any clear indication on its part that it did not desire to assert that right may be regarded as a waiver of the objection. However, a waiver of an objection does not operate as a consent if consent is required, and a mere failure to object does not amount to a waiver except as otherwise stated or indicated in this manual.” [Emphasis supplied].
It is observed, of course, that the foregoing passage has reference only to the waiver of a right to object to the admission of evidence. It is also to be noted, however, that the Manual is significantly silent on the subject of waiver of the right to have the court-martial instructed on the elements of the offenses charged. Most certainly it is impossible to defend a looser approach to protection of the latter right — declared by this Court to be an element of military due process — than that commanded by the Manual as to a mere matter of objection to evidence!
Reference must be made to a further point made in the majority opinion. There it is said that a court-martial trial should not be permitted to “become a game where the sly defense counsel can acquiesce in erroneous instructions merely to build a record for obtaining a reversal on appeal.” This caveat is just as sound as a bell, and I approve it warmly. However, the following observations may be made. (1) If a competent law officer is utilized, and if he does his job and assumes the responsibilities which are, in the last analysis, his, there is small likelihood of the danger envisioned by my brethren. (2) “Slyness” on the part of trial defense counsel is a quality of which I have seen virtually none in the many hundreds of records I have read during the period of my connection with this Court. (3) For whatever it is worth, it should be pointed out that defense counsel at the trial almost never represents the accused at any upper-level review proceeding. At the moment I can recall no single case in which the ■accused was represented before this Court by his counsel at the trial.
Of course, the instruction given in this case was manifestly insufficient in so far as it sought to incorporate by reference comments of defense counsel. The law officer is required to instruct members of the court. Uniform Code of Military Justice, Article 51 (c); Manual for Courts-Martial, United States, 1951, paragraph 73; United States v. Clay, supra; United States v. Bobby L. Keith (No. 226), 4 CMR 36, decided July 3, 1952. We have made it clear that reference by the law officer to appropriate Manual paragraphs will not operate to fill gaps in his instructions. United States v. Gilbertson, (No. 318), 4 CMR 57, decided July 22, 1952; United States v. Cromartie, (No. 374), 4 CMR 143, decided August 6, 1952; United States v. Strong, (No. 244), 5 CMR 55, decided August 27, *4501952; United States v. Moreash, (No. 715), 5 CMR 44, decided August 27, 1952; United States v. Kubel, (No. 229), 5 CMR 73, decided August 29, 1952. In United States v. Berry, (No. 69), 2 CMR 141, decided March 18, 1952, we ruled that the failure of the law member of a general court-martial to exercise certain of the functions imposed upon him by law, which had been usurped by the president of the court, was error requiring reversal. Here there was no third party usurpation of the law officer’s duty to instruct — he simply abdicated it in favor of defense counsel, which practice, to my mind, is fully as undesirable in nature — although certainly not in degree — as that found in the Berry case.
Moreover, the Government argues that — reference to the statements of defense counsel aside — the instructions as to larceny, read as a whole, properly apprised the court of the elements of that offense. We have noted earlier that where there is apparent instructional confusion “we are required to look at the charge as a whole and determine whether the court was clearly, fully, and fairly instructed.” United States v. Roman, (No. 191), 2 CMR 150, decided March 19, 1952; United States v. Shepard, (No. 343), 4 CMR 79, decided July 25, 1952. Appraising the instructions of the law officer as regards larceny in the instant case in accordance with this standard, the best that can be said for their language is that only in the most general way may it be said to delineate the elements of the offense. This is insufficient. Standing alone, and aside from those matters mentioned immediately hereafter, it falls far short of meeting the mandatory standards of Article 51 (c) of the Uniform Code, supra. United States v. Welch, (No. 318), 4 CMR 57, decided May 27, 1952; United States v. Gilbertson, supra.
As noted above, the right of the present accused to instructions is included within his guaranty of “military due process.” United States v. Clay, supra. However, I also observe that the larceny comprising the content of Specification 1 and the wrongful sale underlying Specification 3 relate to identical gasoline. In this respect the case is similar to United States v. Kubel, (No. 229), 5 CMR 73, decided August 29, 1952, in which the accused, in separate specifications, was charged with the larceny and sale of a specified number of blankets. There the law officer neglected to charge the court explicitly concerning two elements of larceny, namely, the value of the property and the necessity for an intent permanently to deprive the United States thereof. Only the instructions as to larceny were assailed at the bar of this Court — no objection having been taken to those treating of wrongful sale. Recognizing the unique character of the situatioii presented — and in no way intending to retreat from our position in the Clay case — we ruled in Kubel that, because the charge in the case of. the sale was proper, the court was required to find — and must have found, pursuant to the instructions there given — the very elements omitted from the larceny charge. Of logical necessity those elements must have been found in convicting the accused of the wrongful sale.
There is very little — if any — difference between the Kubel case and that at bar in so far as Specifications 1 and 3 of the latter cause are concerned. In the former, the court was advised that it must conclude that the accused “appropriated” the property as alleged, and that the property “belonged to the United States and was furnished or intended for the military service thereof.” In this case, the law officer informed the court that the accused had been charged with “the alleged stealing of certain specified amounts of gasoline of some value specified, furnished for and intended for the military service and property of the United States.” It is readily apparent that each left the members of the court uninstructed in the same elements of the offense of larceny, that is, the value of the property involved and the intent permanently to deprive the United States thereof. Here, as in Kubel, the same property was the subject of a charge of larceny (Specification 1) and a charge of wrongful sale (Specification 3). The sale — • which was the subject of proper and *451complete instructions — necessarily required the establishment of an intent to deprive the Government of the property permanently without its knowledge. The finding of wrongful sale, perforce, also required a finding that the value of the property was as alleged. We, therefore, must conclude, as we did in Kubel, that the court was required by the totality of instructions to find, and in point of fact found, each of the elements of the larceny alleged in Specification 1.
Of course, I am not to be understood as placing my stamp of approval on the instructions in this case as they pertain to Specifications 1 and 3. Desirable practice would indeed demand in cases where an accused is charged with larceny, and at the same time with wrongful sale of the same property, that explicit instructions be given concerning the elements of each oifense. Nor am I to be understood as arguing that there was no prejudice to appellant for the reason that there was sufficient evidence of his guilt. It should be made clear that my conclusion here is based on the peculiar circumstances of this case, and solely on the presence of a total instructional picture which meets —but barely meets — minimum standards. In no sense do I support findings of guilty under Specification 1 because —apart from the question of instructions — they were based on sufficient evidence. This was not our view in Kubel, and it is not my view here.
The foregoing does not dispose of appellant’s conviction of larceny under Specification 2. No wrongful sale of the property there involved was charged, and we have with respect to this specification no Kubel situation. Therefore, the absence of instructions on the elements of the larceny alleged in Specification 2 would require that the conviction based thereon be set aside. United States v. Clay, supra.
. Accordingly, in my view, the convictions under Specifications 1 and 3 should be affirmed, and that predicated on Specification 2 reversed.