(dissenting):
I dissent.
Following the acceptance of accused’s plea of guilty, the law officer in this case stated that the specifi-cations and the charges had been proven by the plea; that voting by the court on the accused’s guilt or innocence was unnecessary; and directed that a finding of guilty of all charges and specifications be entered in the record. The court thereafter considered only the question of the accused’s sentence. The board of review set aside the findings and sentence and directed a rehearing in view of the court-martial’s failure to vote upon the findings. The Judge Advocate General of the Army certified to this Court the question of the correctness of the board of review’s decision. The majority finds that the entry of the findings by the law officer, albeit erroneous, did not prejudice the accused.
*463The author of the principal opinion notes that “Congress has not seen fit to do away with findings by a court-martial on guilty plea cases.” By its reversal of the board of review today, this Court, however, does precisely that, for the services will seize upon its failure to find prejudice, as they did following the decision in United States v Lucas, 1 USCMA 19, 1 CMR 19, and institute in their courts-martial the practice of eliminating deliberation and voting on the findings. Another example of the pernicious effect of sanctioning the disregard of positive legislative commands is found in United States v Shaffer, 2 USCMA 75, 6 CMR 75, and United States v Stewart, 2 USCMA 78, 6 CMR 78, wherein this Court, by its holding of no prejudice, laid the foundation for the current military practice of excusing challenged court members without the voting required by the Uniform Code of Military Justice, Article 41, 10 USC § 841.
Articles 51 and 52,10 USC §§ 851 and 852, unmistakably require the members of a court-martial to vote upon the issue of the accused’s guilt or innocence, and no exception is made concerning cases in which the accused has entered a plea of guilty. Indeed, the majority concedes that accused’s plea of guilty did not eliminate the statutory requirement for findings of guilty by the court members, duly reached after voting by secret written ballot, and that the law officer’s purported entry of a verdict of guilty was erroneous. They conclude, however, the error was merely procedural and, as such, was nonprejudicial and waived. Article 59, Code, supra, 10 USC § 859. It is this terminal proposition, dispositive of the case, that I stringently protest.
A court-martial is not a private and personal tribunal for the services to use as they see fit, but a judicial body created by Congress for the administration of justice that we might have in the armed forces truly a government of laws and not of men. The type of proceedings approved today returns control of military justice to the commander, for it forever forecloses the court members from questioning the voluntariness of the accused’s plea or obtaining the facts in the case, and interposes between the convening authority and the accused only the thin shield of the law officer, himself frequently the subordinate of the individual who has ordered the trial.
The action taken in the trial of this case was that of the law officer rather than that of a general court-martial convened under the authority granted in the Code, supra, by Congress. In Kotteakos v United States, 828 US 750, 66 S Ct 1239, 90 L ed 1557 (1946), the Supreme Court examined a harmless error statute similar to Article 59, supra, noted that these enactments were designed to eliminate the criticism that appellate courts “ ‘tower above the trial of criminal eases as impregnable citadels of technicality,’ ” and concluded they were not intended to sanction departures from constitutional norms or specific legislative commands. The requirement for voting on the findings, after due deliberation, was unequivocally set forth by Congress in the Uniform Code after extensive hearings. Had they believed it proper for the law officer to render judgment alone, they would have specifically provided for such action, as it would have eliminated a practice in military law which antedates the founding of our Nation. On the contrary, however, the plea of The Judge Advocates General that the law officer be permitted to participate in the voting on the findings was rejected, and it was legislatively determined his action in connection with the court’s verdict was limited to placing the findings in proper form. House Report No. 491, 81st Congress, 1st Session, page 6; Senate Report No. 486, 81st Congress, 1st Session, page 6; Article 39, Code, supra, 10 USC § 839. The departure in this case from a specific Congressional direction is in itself prejudicial. Kot-teakos v United States, supra.
Finally, I must inquire concerning the basis on which the sentence in this case rests. It is fundamental that a defective verdict vitiates the foundation for sentencing an accused. 23 CJS, Criminal Law, § 1414; Wharton’s Criminal Law and Procedure, § 2129, et seq. The absence of any verdict at all is, of course, a much more serious lapse, and *464compels the conclusion that the board of review acted properly in determining the error was jurisdictional in nature and could not be waived.
In summary, I believe our approval of the departure from a statutory norm in this case is clearly wrong and frees the services from a salutary restraint imposed upon them by the Congress. I point out to my brothers the similarity between the language used in Article 52(a), involved here, and Article 52(b), regarding voting upon the sentence. Under the construction of the former provision handed down today, it logically follows that the accused may also waive his right to have the court members adjudge the penalty for his misconduct. Thus, despite the contrary mandate of the legislative branch, we may be soon faced with a full-scale trial by the military judge alone in which the court members participate only as interested spectators — a trial under men and not a trial under law.
I would answer the certified question in the affirmative, and affirm the decision of the board of review.