(dissenting):
I dissent.
My associates cite two opinions authored by me, namely United States v Hunter, 2 USCMA 87, 6 CMR 37, and United States v Parker, 6 USCMA 75, 19 CMR 201, and argue that they govern the disposition of this case. Strangely, I find not the slightest similarity, factually or legally. On the contrary, this case is sui generis and in my opinion can never be catalogued with other decisions because of the finely spun theories my associates advance to dispute their own contention that “It is not our purpose to supplant the judgment of counsel with our own ideas of sound trial tactics, for we .realize fully the easy solutions often suggested by hindsight.”
I am going to leave to those who now are, or hereafter may become, familiar with the record to determine the validity of all of the suppositions advanced by my associates to support their results. However, I will answer the most controversial for the purpose of illustrating that they are merely second guessing a calculated and defensible position taken by trial defense counsel. However, before pointing out what I believe to be misconception in the after-the-fact speculation, I call attention to the probability that this case is unique. Usually, records of cases showing inadequacy of counsel do not demand such careful weighing of words, phrases, and theories as I find in this opinion to substantiate a claim that the proceedings show a complete lack of judicial character. Such a deficiency is ordinarily so apparent that it is readily discernible to all who read the record. Here, however, my associates are the only individuals who have been able to detect any incompetency of defense counsel, and even they have been forced to limit their attack largely to a choice of tactics on sentence. Significantly, the accused has not turned on his lawyers, as the record of trial shows he was satisfied with their advice and efforts on his pretrial agreement, and to this day he has not contended that he was not fully and fairly advised on each step taken. Nor has he advanced any fact or facts associated remotely with improper representation. Certified defense counsel appeared before a board of review and the only contention made at that level was that as a matter of appropriateness in the exercise of their clemency powers the board should reduce the sentence to a bad-conduct discharge and the period of confinement to six months. On appeal to this Court, no assignment of incompetency of counsel was asserted, but the coup de grace is that after we spelled out that that issue might be of some importance and it was briefed by appellate defense counsel, they specifically rejected our suggestion. I quote from their brief:
“In this brief it is not the intention of appellate defense counsel to question the competency of the trial defense counsel. For in the record of *404"trial the motivation of the defense ■counsel in arguing only the civilian employment aspect of the accused is not clear, albeit it could have been a deliberate move on the part of the defense counsel to stress the fact that the accused had apparently demonstrated that he had been ‘rehabilitated’ for civilian life.”
"While I do not contend that we should accept the concessions of appellate counsel if they are not well founded, I do assert that when they cannot honestly :argue that trial defense counsel was incompetent, we should be hesitant to use that reason as a basis for reversal. 'Surely we should not assume inadequacy at all levels.
The first important area of dispute "between my associates and me is identified by their statement that there is but one inference which the court could ■draw from the personal data submitted by trial counsel. If that is true, I ■wonder why it was never noticed by ■others intimately connected with the •case. To me, it is an inference which is ■so obscure it would not likely be drawn but, even assuming arguendo it could "be under some circumstance, I am sure that in an eleven-minute conference it would escape undetected. Certainly, it "had to be specifically called to my attention, and even then I dispute its validity. The data read into the record was this:
“ACCUSED: Donald F. Huff. SERVICE NUMBER: RA 16 297 .810. RANK OR GRADE: Sergeant <E-5). ORGANIZATION AND ARMED FORCE: U. S. Army Casual Detachment, Post Provost Marshal Activity, U. S. Army Garrison (Field), Fort McPherson, Georgia. "DATE OF BIRTH: 26 October 1929. PAY PER MONTH: Basic $220.00; 'Sea or Foreign Duty, None; Total, '$220.00. CONTRIBUTION TO "FAMILY OR QUARTERS ALLOWANCE : None.
“RECORD OF SERVICE: Initial Date of Current Service, 10 September 1951; Term of Current Service, 'Six years; Prior Service, Three years, no months, six days.
“DATA AS TO RESTRAINT: Nature of Any Restraint of Accused, Confined; Date, 4 June 1959; Location, Post Stockade, Fort McPherson, Georgia.”
To draw the inference which is so clear to my associates, the court members would have to possess remarkable memories and rationalize as follows. They would have to remember particularly all the dates mentioned by trial counsel, noting that the initial date of current service was September 10,1951; that the enlistment was of six years’ duration; and that the period would terminate on September 9, 1957. With that as a starting point, they would have to recall that the specification alleged that the absence commenced on October 5, 1957. The case was tried on July 10, 1959, and I doubt that during the short time the court members were discussing sentence they would be concerned with those refinements. But assuming they were, for them to have inferred from the mentioned dates that the accused was making up bad time for a previous conviction is giving them too much credit for perspicacity. I may be mistaken, but it is my understanding that servicemen are quite frequently held in the service beyond the end of their term of enlistment for medical reasons. I merely suggest this one reason for delay — and there are others— as a basis for the court members to infer that the accused had been retained beyond his enlistment period for health or other reasons which would not necessarily reflect adversely on him. To me that would be more reasonable, for I have a well-founded suspicion that when a soldier appears before a court-martial wearing his sergeants’ stripes coupled with a statement by trial counsel that he has no evidence of previous convictions, it is stretching the imagination to find that the court members would remember his personal data, recall that at the time he absented himself, some two years before trial, he was serving less than thirty days beyond his period of enlistment, and then draw the inference that he had been retained in the service because of bad time occasioned by a prior offense.
The next alleged error made by trial defense counsel is that he aggravated *405the effect of the previously mentioned compelled inference by showing the accused had once reached the grade of staff sergeant without explaining the circumstances under which he was reduced. This is piling inference on inference, for my associates apparently speculate that the evidence would show a reason for the reduction which did not reflect adversely on accused, whereas the court members were left uninformed and, after having inferred a prior offense, would presume the accused was reduced as a result of a court-martial conviction therefor. There are numerous reasons for the reduction of noncommissioned officers, and as a check on the reliability, of the assumed inference drawn by this Court I find that the records in the Adjutant General’s office show that at the time the accused was tried on the first desertion charge he was a corporal. Perhaps he and his defense counsel might not have thought it judicious to show two reductions in rank and the reasons therefor. However, casting aside all conjecture, I did not know it was improper representation to show the capabilities of an individual to reach a high grade in the noncommissioned officers’ ranks, nor that he had turned into a useful member of society with no need for rehabilitation and with no necessity of being confined. Moreover, I question the holding that it is good representation to bring before the court the fact that a noncommissioned officer was reduced to the lowest enlisted rank because he was convicted of the crime of desertion when the Government is barred from making that showing. In this connection, much emphasis is placed on the fact that defense counsel made a misstatement when he said the accused was convicted of desertion. In this setting, it seems my brothers are forced to rely on a weak rod when they challenge the use of the word “desertion,” for accurately speaking the court-martial found the accused guilty of that offense. The fact that the convening authority reduced the offense to absence without leave does not change the findings made by the court-martial, it merely gave the accused the benefit of clemency at the first review level. But, regardless of nomenclature, the accused was convicted of an offense involving an unauthorized absence of some seven months’ duration which carried confinement and a punitive discharge, and had he opened up the subject, the Government could have introduced the record of the prior trial and everything would have been revealed. Moreover, it could have been shown that he was given an opportunity to rehabilitate himself and, while he served for over three years, when he was unable to get the assignment of his choice he once more abandoned the service and became a two-timer, and both times he intended not to return. Now defense counsel is held incompetent because he made an informed choice to avoid that showing. But, even assuming he made an error in judgment, this sort of error does not entitle an accused to a reversal on the grounds of inadequacy. If errors in the choice of tactics make a trial a hollow gesture, then many an accused in both military and civilian courts has been denied his day in court.
Lastly, I am unable to understand the reason for setting aside the plea of guilty and granting a rehearing. The basis assigned seems to have its roots in a bed of cumulative errors as reference is made to inaccuracies in the report of the Article 32 investigating officer and the perfunctory performance of the duties required by Article 34, Uniform Code of Military Justice, 10 USC § 834. Other matters seem to be thrown in as makeweight arguments. With regard to the Article 32 investigation, mention is made of the fact that the report does not show the presence of counsel. That deficiency consists of the failure of the investigáting officer to make an “X” in one box on a form. The insignificance of that omission becomes obvious when the record is considered. Appellate defense counsel filed a petition with this Court for appropriate relief based on the assertion that the accused was denied counsel at the pretrial investigation. The record shows this petition was withdrawn when the accused affirmed under oath that, he was represented at that hearing by the same counsel who appeared at the trial. The inconsistencies between his affidavit and those of defense coun*406sel and the investigating officer filed on appeal are readily reconcilable when it is understood that the accused did not consult with his appointed counsel until the investigating officer had collected the evidence which consisted of official documents. At that time, counsel and the accused concluded not to require the investigating officer to repeat his performance. However, any irregularity in the pretrial investigation becomes of little importance in this case. We have repeatedly held that pretrial deficiencies must be raised by appropriate motion at the time of trial and that pleas of guilty waive all but jurisdictional errors. See United States v Rehorn, 9 USCMA 487, 26 CMR 267; United States v Mickel, 9 USCMA 324, 26 CMR 104; United States v McCormick, 3 USCMA 361, 12 CMR 117; and allied cases. I wonder what consideration has been given to those opinions.
As to the alleged perfunctory performance of the staff judge advocate in discharging his duties under Article 34, the contention is made that the staff judge advocate decided, “There has been substantial compliance with the provisions of Article 32, UCMJ,” when there was a patent deficiency. That issue is elaborated by the statement that there was only token compliance, but significantly missing is the recitation of any evidence to support the charge. If the record shows any other deficiencies other than the single marking omitted, they appear only in post-trial affidavits which were not in existence at the time the pretrial advice was prepared. And as for the staff judge advocate’s post-trial review, in the section on sentence, the convening authority was therein advised of the matters contained in accused’s pretrial offer — matters of which he obviously was already aware. It is quite true that after mentioning the fact, the reviewer did not discuss trial defense counsel’s omission to apprise the court-martial of those facts. However, unless one concludes — and my associates are the first to do so — that, defense counsel was incompetent, I suppose no issue is raised by the omission which warrants discussion by the staff judge advocate.
Finally, the majority states in the last paragraph of their opinion “the findings may be difficult to assail.”' That is an understatement for, unless all principles of law are discarded, the findings cannot be assailed. But I wonder why my brothers seek to accomplish the difficult and, in the interest of justice, give the accused a rehearing when he himself does not ask for that, relief. Justice is due the accuser as well as the accused, and the most the latter prays for in his petition is that he be granted a rehearing on the sentence. He obtained benefits from a pretrial understanding which resulted in a short period of confinement, and he may be willing to stay by his agreement. He does not represent that he will not again plead guilty, and so I say the disposition ordered by the Court is unwarranted, possibly futile, and it may turn out to be a gratuity unwanted and disclaimed by the accused. Moreover, I suggest the eventuality that this reversal may have the legal effect of voiding the agreement that occasioned the reduction of accused’s sentence, thus removing a ceiling on punishment at the rehearing. If so, accused may be prejudiced on his subsequent sentences.
In summation, I believe there is some legal strength to the arguments I have advanced, and, if so, the majority has reversed a case on the ground of alleged incompetency of counsel merely because at this date and at this level it appears to them that a better course of defense could have been adopted at trial.
I would affirm the decision of the board of review.