Opinion of the Court
ROBERT E. Quinn, Chief Judge:The question before us is whether the law officer erred in denying a defense motion to dismiss certain charges or to refer them to another Article 32 investigation. Uniform Code of Military Justice, 10 USC § 832.
At the pretrial investigation individual defense counsel moved that all witnesses which the Government proposed to use at the trial be produced for examination. Only one of the several' prospective witnesses appeared and was examined. However, evidence was admitted to show that the other witnesses were unavailable. Their expected testimony was received in the form of un-sworn statements. No objection was interposed to consideration of these statements.
In United States v Samuels, 10 USCMA 206, 27 CMR 280, we pointed out that “the statement of a witness may be considered by the investigating officer [in the Article 32 investigation] only if it is supported by oath or affirmation.” We held that the accused’s objection to the investigating officer’s use of the unsworn statements' “clearly included an assertion” that the statements were not entitled to consideration because they were unsworn.
Here the accused’s objection to the pretrial statements was directed exclusively to the question of unavailability of the witnesses. That issue was decided against him and there is sufficient evidence to support the ruling. True, defense counsel maintained that under Article 32 the accused “has certain rights” and counsel felt he should be afforded “all of them in full.” But the assertion was made in specific connection with the attack on the unavailability of the witnesses, and in no way suggested an objection to the use of the-unsworn statements. There being no-objection to the particular error at either the pretrial proceeding or before the law officer, it was waived. United States v Mickel, 9 USCMA 324, 26 CMR 104.
The decision of the board of review is affirmed.
Judge Latimer concurs.