(dissenting):
I dissent.
In reversing the decision of the board of review in this case, the author of the principal opinion ignores the basic proposition that jurisdiction cannot be conferred upon a court-martial by the consent of the accused. McClaughry v Deming, 186 US 49, 22 S Ct 786, 46 L ed 1049 (1902). That jurisdictional error is present is evident from the uncontroverted declaration by the law officer in the record:
“LO: Just one moment. As law officer I feel that I am subject to challenge under one of the first eight grounds. I am familiar with this case. I helped prepare the charges and specifications with the courts and boards of the 18th Infantry. I have gone over the evidence in this case. I have helped prepare the charges and specifications in the case of the United States against Goodwin, and in the case of the United States against Humble, companion cases to the case now at bar. I am thoroughly familiar with all the evidence in the cases; I have gone over all the statements; and I sat as law officer in the case of the United States against Goodwin, Private Goodwin, which is the companion case to this. Now, as stated at the outset, I would come under one of the first eight grounds for challenge. Now, at this trial, after such disclosure by this law officer, I will inquire of counsel for the accused whether they desire the right to exercise their challenge for cause.”
The defense expressly waived any right to “challenge” the law officer and the trial proceeded, upon the accused’s plea of guilty, to findings and sentence. Subsequently, the board of review set aside the findings and sentence on the basis that the law officer’s pretrial activities rendered the court improperly constituted and directed a “rehearing.” Thereupon, the Acting The Judge Advocate General of the Army certified to this Court the question whether the board of review was correct in determining that the court-martial lacked jurisdiction and, if so, whether it was proper to order a rehearing in the case.
Article 26 (a), Uniform Code of Military Justice, 10 USC § 826, provides pertinently:
*577“(a) The authority convening a general court-martial shall detail as law officer thereof a commissioned officer who is a member of the bar of a Federal court or of the highest court of a State and who is certified to be qualified for such duty by the Judge Advocate General of the armed force of which he is a member. No ‘person is eligible to act as laxo officer in a case if he is the accuser or a xoitness for the prosecution or has acted as investigating officer or as counsel in the same case.” [Emphasis supplied.]
The detailed resumé which the law officer herein gave of his conduct in connection with the initiation of the prosecution of the accused leaves no doubt that he had aligned himself with the Government prior to the convening of the court-martial and that he had thus acted as “counsel in the same case.” Indeed, my brothers so characterize his behavior but conclude that it merely made him subject to challenge, a procedure affirmatively waived by the accused. To the contrary, I think it well settled that he was disqualified to act as law officer and that the court-martial was improperly constituted.
In McClaughry v Deming, supra, the petitioner was a volunteer officer tried before a court-martial consisting of Regular Army Officers. At that time, Article of War 77, Rev Stats § 1342, provided that “Officers of the Regular Army shall not be competent to sit on courts-martial to try the officers . . . of other forces.” In holding that the court-martial lacked jurisdiction to try the petitioner, the Supreme Court pointed out:
A court-martial is the creature of statute, and, as a body or tribunal, it must be convened and constituted in entire conformity with the provisions of the statute, or else it is without jurisdiction. . . .
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“It is urged, however, that the 77th article of war contains no reference to the jurisdiction of courts-martial; that it merely provides that certain officers shall not be competent to sit on such courts to try certain offenders, and that the jurisdiction of the court to hear and decide is regulated by other articles. But the court-martial that has jurisdiction over any offense must, in the first place, be legally created and convened. Such a court is not a continuous one, created by the statute itself and filled from time to time by appointments of certain members under the power given by statute. The court has no continuous existence, but under the provisions of the statute it is called into being by the proper officer, who constitutes the court itself by the very act of appointing its members; and when in appointing such members he violates the statute, as in this case, by appointing men to compose the court that the statute says he shall not appoint, the body thus convened is not a legal court-martial, and has no jurisdiction over either the subject-matter of the charges against a volunteer officer or over the person of such officer.”
There being no difference between the term “competent” and the term “eligible,” I believe the foregoing rationale to be equally applicable in the construction of that portion of Article 26 (a), supra, which prohibits the appointment of a law officer who has previously acted in the enumerated capacities. Indeed, I thought the question settled by our prior opinions. In United States v Renton, 8 USCMA 697, 25 CMR 201, when confronted with the same type of pretrial conduct on the part of the law officer, we stated:
“. . . [T]he law officer, by reason of his pretrial activities, became totally incompetent to serve in that capacity and the tribunal, therefore, was left without a law officer . . . In such a setting, it ceased to be a court-martial for any purpose but to take the necessary steps to have itself reconstituted.”
And in United States v Wilson, 7 USCMA 656, 23 CMR 120, wherein we were confronted with the law officer having become a witness for the prosecution following the findings, we remarked :
*578. . Thus it is crystal clear that at the instant Major Vaughan became a prosecution witness, the tribunal was without a proper law officer and it ceased to be a court-martial for any purpose except to take the steps necessary to have itself reconstituted.”
It will be noted that, in both cases cited, we dealt with “ineligibilities” set forth in Article 26(a), Code, supra, and, in each instance, we couched our disposition in language bespeaking a lack of jurisdiction in the court-martial concerned. What then are the cogent arguments presented by the Government which cause my brothers to depart from precedent in this area? Examination of the briefs filed in this case show no contentions that we have not heard before, nor, indeed, that were not specifically considered and rejected by the Supreme Court in McClaughry v Deming, supra. On the other hand, I am aware of a peculiarly strong argument for consistency in approach in this area. It is universally agreed that absence of jurisdiction renders the proceedings of a court-martial a nullity. See United States v Padilla, 1 USCMA 603, 5 CMR 31. Hence, a sentence purported to be adjudged by such a body does not operate as a limitation in the event the accused is again brought to trial. However, pretermitting consideration of intermediate appellate reduction, a sentence adjudged at the original trial represents the maximum which may be adjudged on any rehearing. United States v Jones, 10 USCMA 532, 28 CMR 98; Code, supra, Article 63, 10 USC § 863. Frequent shifts in our position concerning the jurisdictional eifect of pretrial participation by the law officer, therefore, result in one accused being subjected to a new trial without any limitation concerning the sentence to be adjudged, while, as a result of our differing approach to the same problem when next presented, another accused receives the benefit of whatever lower limit of punishment is represented by the sentence initially imposed in his case. The inherent unfairness involved is apparent. Accordingly, I believe it particularly important that we adhere to the basic doctrine of stare decisis in determining whether a court-martial is properly constituted.
As I conclude that Congress, in Article 26(a), Code, supra, forbade the appointment as law officer of one who had previously acted as counsel in the same case, I am of the opinion that accused’s court-martial was improperly constituted. McClaughry v Deming, supra; United States v Renton, supra; United States v Wilson, supra. Hence, it lacked jurisdiction over either the charge or the accused. Accordingly, I would answer the certified questions in the affirmative and return the record of trial to the board of review with a direction appropriately to amend their action thereon to order another trial.