(dissenting):
I dissent.
By what standard do we measure adequate representation by counsel when an accused is not represented by a certified lawyer? That is the question of moment in this case. The majority find defense counsel inadequate as to one specification and competent as to others, but I am unable to decide what measuring rod is used. Congress authorized non-lawyers to try special court-martial eases, so the standard of representation could not be greater than that possessed by average officers not learned in the law. If that is the touchstone, this defense counsel has met the test and his client has no just cause for complaint. However, if other *51yardsticks are to be prescribed by the Court then they should be explicitly proclaimed.
The accused was tried on three specifications of larceny, in violation of Article 121 of the Code, 10 USC § 921, and one specification of disobedience of orders, contrary to Article 92 of the Code, 10 USC § 892. He originally pleaded guilty to the crimes of larceny and not guilty to the remaining offense. Thereafter he substituted a plea of not guilty to one larceny specification — and one involved in this appeal — and stood trial. He ended up not entirely without success for the court-martial found him guilty of the larceny but not guilty of violating the lawful order. It would appear from his result that counsel’s efforts were not futile, but his day’s work, when measured by a majority of this Court, is rated partly adequate and partly inadequate. In the light of his accomplishments, and the inconsequential effects of his error, if there were one, I would go the whole way and find that he adequately represented the accused.
I take the position that when defense counsel is not an attorney, he cannot be expected to possess the technique of certified counsel and his tactics may not always reach the level of a well-trained criminal lawyer. But I suspect that when enacting the Uniform Code of Military Justiee, members of Congress well knew that trials before special courts-martial would not be in accordance with the highest tradition of courtroom procedure, for the Code contemplates trials in those forums without the assistance of legal specialists. However, in this instance, the record satisfies me that, at most, this officer only failed to require the prosecution to corroborate a confession before he placed the accused on the witness stand. For reasons which I will more fully develop, that is not a palpable error of judgment.
The accused, prior to trial, had made a statement in which he admitted all elements of the offense with the possible exception of the criminal intent. In the light of his admissions, the only possible hope for any defense that is suggested remotely by any information gleaned from the papers m this file' had to be founded upon a mistake of. fact. In his statement, there is some suggestion that the accused believed his relationship with the victim, coupled, with her request for his assistance in obtaining the check when issued, authorized him to negotiate the instrument, use the proceeds, and reimburse the payee with other funds — not a strong defense, but certainly the best available.
To establish that type of defense, it was essential that the accused admit the taking and use of the proceeds because he could not contend on the one hand that there was no conversion and on the other hand assert that he used the proceeds of the check innocently because he was mistaken about his authority. Therefore, to get the maximum benefit from accused’s prior statement and to exploit successfully his only hope for success, defense counsel may have chosen not to require the Government to present its entire case. That is a defensible position to take because good results are sometimes obtained by electing to defend on the strength of a client’s testimony and not by relying on the weakness of the prosecution. Many top-flight lawyers admit matters which are certain of proof to go straight to the heart of their defense. However, assuming arguendo that the best representation may have decreed the other alternative, that is not to say that the choice made in this instance was without foundation in logic or reason.
Of course, I must meet the argument that defense counsel could have made a motion for a finding of not guilty and thus have given his client two chances for success. Even in that regard I am unwilling to concede incom-peteney, for taking the first chance might have been ruinous. Had defense counsel moved for a dismissal and thereby forced the Government to call the victim to the witness stand, I am certain she would have destroyed every hope the accused had to raise a reasonable doubt in the mind of the court about his intent. She would have laid to rest any doubt about his authority to use her funds. That alone would justify defense counsel in not shadow*52boxing over ingredients which are unimportant to his defense.
Perhaps I will be charged with over-speculating the capabilities of this counsel. If so, I can only say that when this Court enters the field of inadequate representation without the benefit of knowing the facts which motivate trial defense counsel, the whole area becomes conjectural. Obviously, I make no pretense of knowing precisely why defense counsel chose the strategy he did. Neither do I pretend to know why a plea of guilty was changed to one of not guilty, but I can assume that whatever reasons counsel had, they were free from negligence or wrongful motives and I refer to the briefs of the parties to support that statement. Why then, I ask, is it necessary for this Court to speculate that he was so ill-equipped for his task that he afforded his client a trial that was a hollow and empty gesture? Instead of conjecturing in that vein, I believe we should take into account that trial tactics are dictated by many factors not reflected in a record and that based on information in his possession, trial defense counsel may well have pursued a proper course. Corroborating testimony is required principally to avoid the possibility of a person confessing and being convicted of a crime he did not commit. Its production would only help the prosecution and its absence would benefit the accused. While on appeal it may seem to us that other tactics are preferable to those used at trial, it is to be remembered that we are uninformed about many variables known to persons participating in the trial proceedings. By way of illustration, apparently the accused had changed his mind about pleading guilty, and that set the stage for a trial on the merits. In the light of that development, it is highly probable that the Government could have presented good grounds for a continuance if a motion had been made, and then accused would have foreclosed his only hope for success.
Since Congress has provided for trial by special courts-martial, untrained counsel must have some latitude in choosing their method of defense and, as long as I am forced to speculate, in this instance I reach the conclusion that this counsel made an acceptable choice. If he did not and was inadequate for the purpose of advising on one specification, then I have great difficulty in reconciling the holding that he was competent to advise the accused on the specifications to which pleas of guilty were entered. Be that as it may, as I interpret our holdings, an error in judgment is not the equivalent of inadequacy. Particularly is that true in a special court-martial trial.
I would affirm the decision of the board of review.