(concurring in the result):
Although the law officer directed the change in the specification, in my opinion, by so doing, he did not assume the role of trial counsel. Cf. United States v Self, 3 USCMA 568, 13 CMR 124. The worst that can be said of his action is that it indicates a misconception of his judicial functions by claiming the right to amend a specification to con*237form with his prior knowledge of the case. See United States v Fry, 7 US CM A 682, 23 CMR 146. It is from that point of view, that the law officer’s actions must be judged, and, judged in that light, the accused was not harmed.
The nature of the law officer’s misconduct did not bring him within one of the statutory grounds of disqualification. Article 26(a), Uniform Code of Military Justice, 10 USC § 826. The accused and his counsel were fully apprised of the facts and afforded an opportunity to challenge him. Defense counsel, however, maintained he was “satisfied” that what had been done “would have absolutely no effect” upon the law officer’s rulings, and that the law officer would be “completely fair on all rulings.” He further indicated that he had “no desire to challenge” the law officer. Under these circumstances I agree with the conclusion that the accused waived the impropriety in the law officer’s conduct. At the same time, I express n.o opinion on the right of an accused to refuse to stand trial on a charge which is materially different from that actually referred to trial. Cf. United States v Rodgers, 8 USCMA 226, 24 CMR 36. Stewart v United States, 12 F2d 524 (CA9th Cir).