(dissenting):
I dissent.
This case furnishes an excellent example of why the doctrine of waiver is a necessary principle to be used if we are to build an orderly criminal system. Failure to apply the concept in appropriate instances permits persons accused of serious offenses, and without any defense, to toy with the law and put off the day of reckoning until time makes further proceedings futile. That probably will be the history of this case. Here the accused is granted a rehearing some seventeen months after his conviction for an alleged error in admitting testimony when there was no proper objection and the evidence was rendered insignificant by accused’s defense and his admissions prior to trial.
On April 10, 1958, charges were preferred against the accused for making and uttering sixteen checks to the Hotel Paz in Ciudad Trujillo, Dominican Republic, during the months of October and November 1957 and thereafter wrongfully and dishonorably failing to maintain sufficient funds on deposit in the drawee bank for payment of them upon their presentment. Major Greene, who apparently becomes the villain in this drama, was in command of the detachment in the Dominican Republic at the time involved and, because of complaints directed to him, he conversed with and attempted to assist the accused in clearing up his financial irregularities. At that time and during the early investigations, there was never any dispute about the negotiation of the checks as the accused repeatedly acknowledged that he made and converted them to cash. Major Greene first assisted the accused but toward the end of November, and because of many misrepresentations by the accused, Major Greene became disenchanted with his task and the problem was referred to higher headquarters and criminal charges eventually resulted. While Captain A. L. Scally was the accuser, for the purpose of this case I am willing to assume that Major Greene may be considered as such.
A pretrial hearing was held on May 5, 1958, and in his report the investigating officer recommended that a deposition be obtained from Mr. Jose P. Bello, who resided in Ciudad Trujillo. The report shows two other items of interest. First, Lieutenant J. Kollar was requested as defense counsel. He was to become available on May 5,1958, and he, in fact, represented the accused at the pretrial hearing. Second, on May 2, 1958, after having been fully warned of his rights, the accused made the following voluntary and unsolicited statement to the investigating officer:
“I’d like to say one thing. I don’t think this warrants a general court-martial. It’s not like I was trying to beat these people out of something. If I was trying to do that I would have done something big. That’s why, when I found out these checks were coming back, I reimbursed them.”
Prior to the pretrial hearing and on April 10, 1958, it was directed that a deposition by oral examination of a witness residing in Ciudad Trujillo be taken. This witness was not Mr. Bello. Trial counsel and Lieutenant Kollar, defense counsel, proceeded under orders to that city and participated in examining the witness. Because of the shortage of qualified personnel, the reporter was used as an interpreter and the combina*230tion made the recording of the questions and answers most difficult. Very little intelligent evidence was obtained, and trial counsel, defense counsel, and the deposing officer discussed the situation and the necessity of obtaining the necessary evidence from other sources. Mr. Bello was suggested but, because of lack of orders and other administrative difficulties at that time, it was determined that his evidence would be obtained by written interrogatories and cross-interrogatories and that Major Greene would be used as interpreter. When interrogatories and cross-interrogatories were prepared, an officer was dispatched to Ciudad Trujillo to act as deposing officer, but Mr. Bello, who was a colonel in the Dominican forces, refused to testify because approval of his superior officer had not been obtained. That difficulty was later ironed out and, when the deposition was finally taken, Major Greene, in accordance with the prior understanding, acted as interpreter. Lieutenant Kollar, who was representing the accused, was familiar with all these preliminary details and the obstacles encountered and, while he was not requested to stipulate to the use of Major Greene as interpreter, he joined in discussing the situation with trial counsel and the acting staff judge advocate of Patrick Air Force Base on several occasions. By tacitly joining with trial counsel in the selection of the interpreter and by failing to raise any objections to the use of Major Greene, who was selected only because he spoke the language fluently, defense counsel led every one to believe he concurred in the choice.
Major Greene’s activities in connection with the preliminary investigation were fully developed at the pretrial hearing and so they were brought to the attention of the same defense counsel, who also represented accused at trial. Despite that knowledge and knowing full well the major had been used as an interpreter, when the deposition was offered in evidence at the trial, no objection was raised to its admission on the grounds that a disqualified interpreter had been employed. Rather, at that time, defense counsel stipulated that the witness Bello resided more than 100 miles from the place of trial but raised an objection to the use of the deposition on the ground that the Government had not otherwise established unavailability of the witness. This is the language of his objection:
“The defense objects to the admission into evidence of Prosecution Exhibit 1 for Identification, specifically the deposition. The basis for the defense’s objections is that, although we have stipulated that this deponent is in fact beyond one hundred miles away from this installation, this in and of itself is not the sole test for the admissibility of the deposition.”
When his objection on the basis stated was overruled, trial defense counsel made this comment:
“Sir, if the objection is overruled because the prosecution has adequately shown that the witness is unavailable, I should like to state a further objection to the admission of this document into evidence because if he is in fact unavailable, the unavailability was caused by the Government and not by the accused, since he was brought from his station to Ciudad Trujillo to this station and then forced to submit to a deposition of this type.”
This further objection was overruled and the deposition was admitted.
One other fact of some importance to this issue was before the law officer, and that consisted of an admission that the defense did not desire the personal appearance of the deponent. Defense counsel had prepared cross-interrogatories and was familiar with the fact that Mr. Bello would testify by deposition. Upon arraignment, he made a motion to dismiss the specifications and Charge for failure of the Government to afford the accused a speedy trial. In the course of the arguments on that motion, the following discussion took place:
“TC: Or if the defense counsel requests certain witnesses be made available for him, wherever they may be located, that request we will certainly accept and honor. I think defense counsel should be specifically given that opportunity also.
*231“DC: Mi*. Law Officer, I should like to say the defense does not request a continuance. As a matter of fact, due to the enormous amount of time that has elapsed already, the accused does not want to extend this period any further.
“LO: Very well. Does the defense desire to call any witnesses that will not be present, or obtain any depositions which it does not have ?
“DC: No, sii*, we do not desire the presence of any witnesses which we do not have already and the trial counsel’s remarks indicated perhaps the accused was not prepared to go to trial, however, I should like to point out, the accused is prepared to go to trial.”
The original trial was held on July 9, 1958, and, after conviction, the accused was sentenced to a bad-conduct discharge, confinement for twelve months, and forfeitures of $123.33 per month for that period of time. Subsequently, the convening authority granted a rehearing on sentence because of an instructional error. On December 3,1958, a rehearing was held and accused was sentenced to be discharged from the service with a bad-conduct discharge. No confinement or forfeitures were imposed. The record was forwarded to a board of review in the office of The Judge Advocate General of the Air Force and, so far as I am able to ascertain from this record, the first time any irregularity in taking a deposition was mentioned or assigned as error was in a brief of appellate defense counsel filed with the board on March 11, 1959. Therefore, I conclude it was at least eleven months after the defense knew of the irregularities and after a pretrial investigation and two hearings at the trial level before the defense sought to raise any question about Major Greene’s alleged disqualification. The board of review concluded there was no merit to the assignment but sent the record back to The Judge Advocate General with a recommendation the sentence be reconsidered by a new convening authority after he had obtained a new staff judge advocate review. The Judge Advocate General complied with the request and a new convening authority was appointed, a new review obtained, the sentence affirmed, and the case started on its second course through appellate channels. There was no complaint about the deposition at the second hearing before the board of review, and nothing further was done in that regard until the case reached this Court. In a petition filed on July 8, 1959, the error was resurrected.
My associates now reverse the findings and sentence for an irregularity, objection to which could and should have been made a matter of record some eighteen months ago. Had that been done, corrective action could have been taken with little inconvenience to either party. The reason no issue was raised either before or at trial is obvious, for during the early stages of the proceedings the testimony in the deposition was unimportant to the theory of the defense. Moreover, the irregularity was such that had it been called to the attention of the law officer or appropriate military authorities, it could have been purged. Of course, that would have accomplished nothing beneficial to the accused, for the identical evidence could have been obtained with another interpreter. And to do that would have necessitated a delay, which the accused expressly claimed he did not want.
The reason I say the evidence contained in the deposition was unimportant to the theory of defense is this. On March 17,1958, the accused executed a voluntary statement in which he made the following disclosures:
“The photostatic checks shown to me by Sgt Wade are the checks that I wrote.
“I wrote home to my father in Colorado to reopen my account with the First State Bank of Walsemburg. My account had been closed since approximately March of 1957. While my account was open, I sent money to the bank from the bank in Ciudad and also my folks deposited money from a $50.00 Class E allotment which had been made out to them since 1949.
“I obtained blank checks in various places and cashed them at the Paz Hotel. On or about the middle of *232October 1957,1 started having a good time gambling and drinking in Ciudad, and that is when my debts went up above my income. When my debts went above my income, I wrote to my father on 1 October 1957, and told him to deposit some of the Class E allotment to my account. I didn’t get a reply as to whether or not he had deposited the money. I didn’t know whether or not he had received the letter, so I went ahead and wrote checks. All the money I cashed checks for was for gambling and drinking and for a good time. About the middle of October, I started going out more.
“When the Paz Hotel received the first check that was no good, I told them to hold it and I would make it good. So I wrote home for money. My father said that they didn’t have it at the time. Then I wrote to my brother and also called him up. He sent me $450.00.”
In addition to the foregoing admissions, at the pretrial hearing accused made the statement hereinbefore quoted in which he admitted making, uttering, and cashing the checks. Thus at the time of trial, accused had twice in formal investigations voluntarily admitted making and cashing the checks set out in the specifications. Moreover, his consultations with Major Greene and their joint activities in redeeming the returned checks remove all doubt about the identity of the person issuing them.
Accused’s theory of defense, if he had any, was simply and solely that he uttered the checks under the mistaken belief he had or would have money in the bank to cover the checks. To succeed in that sort of defense, he could not deny the facts which would be necessary to support this hypothesis. He was not charged with issuing the checks with intent to deceive, so the only real issue in the case revolved around his failure to have or place funds on deposit to pay the checks. In this regard, all I need say- is that if the deposition testimony shed any light on that question, it was ¡favorable to the accused for the deponent stated the checks had been redeemed. Parenthetically I note that aside from accused’s pretrial statement which I have quoted, the deposition contained the only bit of evidence which could possibly be considered favorable to the accused. Its admission, therefore, could hardly have adversely influenced the court-martial.
My associates use United States v Moeller, 8 USCMA 275, 24 CMR 85, as authority for the position they take in the instant case. I do not believe it supports their views, but I need not get into that controversy for waiver was not therein considered. In that instance, the case was tried before a special court-martial and the accused was not represented by a lawyer. We have rarely, if ever, applied the doctrine of waiver when that situation exists, but not so when a qualified lawyer fails to object to a pretrial irregularity of which he had actual knowledge at the time of the hearing. Certainly, there is no merit to the contention that this accused was denied a fair trial by the admission of this deposition. The testimony contained therein could not be false, unreliable, or rebutted. There is not the slightest suggestion the interpreter had any reason to color the answers, and the information obtained is corroborated by the written exhibits and accused’s admissions. He so firmly fixed this element of the offense that only wishful thinking could support any contention to the contrary.
Accordingly, I am unable — using the language of my associates — to determine wherein “the matter is at best debatable,” or how “the interests of justice will be . . . served ... by rejection of the doctrine of waiver.” I can only conclude this case is being reversed when proper and orderly appellate procedure dictates that accused complained too late.
The second issue has to do with the letter written by The Judge Advocate General of the Air Force when he returned the record to a new convening authority for further action. The disposition of the other issues in the majority opinion renders a discussion of this question unnecessary unless it is desired to alert The Judge Advocates *233General of the services to the effect that they should not comment on the action they take.
I believe my associates overlook the history of military law and misinterpret the provisions of the Code when they take The Judge Advocate General entirely out of judicial channels. In my opinion, the Code permits him to function in a dual capacity. I first point out that under Article 73, 10 USC § 873, he is authorized to consider and act on petitions for new trial and under Article 69, 10 USC § 869, he is authorized to review the records of trial in certain cases. Surely when he performs those duties he is acting in a judicial capacity.
More important, however, insofar as this case is concerned, Article 66(e), Uniform Code of Military Justice, 10 USC § 866, provides as follows:
“The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, or the Court of Military Appeals, instruct the convening authority to take action in accordance with the decision of the board of review. If the board of review has ordered a rehearing but the convening authority finds a rehearing impracticable, he may dismiss the charges.”
And Article 67 (b) (2) of the same Act, 10 USC § 867, requires that we review cases which The Judge Advocate General orders forwarded to us. From these latter two Articles, it appears that when a board of review has published its decision, The Judge Advocate General has the option of returning the record to the convening authority with certain instructions or certifying the case to this Court for further hearing. When this particular record reached The Judge Advocate General, he had that choice and he elected to return the same to the convening authority. He did not suggest any desired result to those who were to review the record, but he did state he had some reservations about the legal correctness of the board of review’s decision which held that the officer who conducted the post-trial interview was disqualified. That was a legal decision and The Judge Advocate General was merely commenting in a field in which he is authorized to act. He saw no point in having us make a determination when the error found by the board of review could be corrected and the irregularity purged with dispatch. In spite of any reservations, he went on to direct the convening authority to follow the mandate of the board of review and, in the absence of some evidence to the contrary, I assume the convening authority did just that.
Further, it is of some interest that the particular board of review which was the tribunal mentioned by The Judge Advocate General passed on this very question and reached the conclusion that the comments set out in the letter were not an expression of displeasure and that they would influence neither a staff judge advocate nor the convening authority. I reach the same conclusion but, in addition, I take the position that when The Judge Advocate General is performing his duties under Articles 66 or 67, he may set out the reasons for his action so long as he does not interfere in discretionary fields of reviewing authorities. In the case at bar, he expressed no opinion on the appropriateness of sentence. At the worst, he did no more than say he had some misgiving about the conclusion that an officer who made the post-clemency review was disqualified, but even so that the convening authority was to proceed on the basis that the board of review decision fixed the law. I fail to see how this advice was erroneous or prejudicial.
Finally, an issue not advanced by the accused, not granted review by this-Court, and not briefed or argued is seized upon to shore up what obviously is a weak decision. While I do not believe we should decide such an important issue without giving the parties an opportunity to be heard — and I point out that both may be prejudiced by the holding — I answer the arguments of my colleagues.
First, it would be to ignore the obvious to overlook those differences between the military system and its civilian counterpart which often make comparisons between the two abhorrent. Even apart from that, however, I am sure the state cases relied upon by my *234brothers give them little support. In my view they are inapposite. Among other things, I suggest the interested reader will find that neither California appellate court ruled as the majority imply. To the contrary, both expressly reserved a holding on the question my associates deem pertinent. And not only do I believe the Code permits the procedure here employed, but this case —unlike the cited New Jersey opinion —was not pending in another court at the time of the rehearing. Thus, I cannot brand the procedure employed here as improper on those grounds. Nor am I concerned because the Uniform Code does not expressly spell out authority for this procedure for, as will be more fully developed hereinafter, I am certain it does grant authority to special courts-martial to try cases of this type. In this regard, I might mention that the Code does not specifically provide for rehearings on sentence only, yet by our decisions we authorized that practice. See United States v Miller, 10 USCMA 296, 27 CMR 370, and cases therein cited. Furthermore, I point out that courts-martial are not continuing tribunals. Indeed, the law requires that rehearings be before a court composed of different members. Article 63(b), Uniform Code of Military Justice, 10 USC § 863. Thus, it is obvious that it was necessary to appoint an entirely new court to impose punishment on accused; the previous court — even if still available — could not lawfully do so. And I suggest it would be absurd to hold that a rehearing on both findings and sentence can be taken from a general court-martial and referred to a new special court, but a separate and divisible part thereof cannot. Certainly, neither the Code nor any provision of the Manual, •or for that matter any other authority to which my attention has been invited, proscribes the procedure employed. Rather, the convening authority who ordered the rehearing on sentence was, without question, competent to convene a special court. Article 23(a) (1), Uniform Code of Military Justice, 10 USC § 823. And inasmuch as the case at bar is noncapital, and since there is no mandatory punishment for accused’s offenses which is beyond the authority of a special court-martial to impose, there can be no question but that the instant case falls within the jurisdiction of a special court. Article 19, Uniform Code of Military Justice, 10 USC § 819. Thus, I am unable to join in what is apparently a holding that a special court-martial is without jurisdiction to proceed under the circumstances here involved. Surely my associates do not suggest, contrary to my assertion made above, that if a rehearing on both findings and sentence were involved, a special court-martial could not hear the case. We have often stated that findings and sentence were separate and distinct, we have divided them for purposes of rehearing, yet if proceedings initiated before a general court may be referred to a special court-martial for a retrial on both, I wonder why jurisdiction is lacking for a rehearing limited to sentence alone.
Before leaving this issue, I deem it appropriate to comment on prejudice, for the principal opinion states that the accused is deprived of substantial rights through the procedure herein employed. I question that as an abstract proposition but, when applied in this case, it is clearly erroneous. Quite to the contrary, I suggest the accused’s real loss here is that the majority divest him of the benefit of a reduced ceiling on maximum punishment occasioned by the jurisdictional limitation of special courts-martial. Under their holding, he can be retried on sentence without the benefit of the reduced sentence imposed by the special court. And contrary to my brothers’ suggestion, which implies otherwise, I invite attention to the fact that the accused was represented at the rehearing on sentence by a qualified lawyer. Moreover, there is a verbatim transcript of the rehearing proceedings, and yet no one suggests any error was committed in the hearing or that accused’s rights were abused. If for the moment I cast myself in the role of a defending lawyer, I am certain I would recommend to any accused that, if confronted with a similar situation, he rejoice at being helped by the referral to the inferior court.
*235For the foregoing reasons, I must disagree with my brothers’ conclusions, I would affirm the decision of the board of review.