(dissenting):
The principal opinion mistakes the issue when it says it includes a refusal “to put the case over . . . until some opportunity has been afforded for . . . new counsel to assist in the preparation of the defense case.” If that were the situation, I would join in reversing the accused’s conviction. But that is not the case. Civilian counsel clearly and unqualifiedly indicated he did not want a continuance to permit the appointed defense counsel, Lieutenant Muraoka, to familiarize himself with the case for the purpose *329of participating in the defense. On the contrary, he iterated and reiterated the claim that he wanted to get “this thing . . . straightened out,” by which he meant, he wanted an appointed defense counsel “equally ranking . . . [or] one as equally experienced” as trial counsel, who was a Major.
If -we look at the bare bones of the appointment of counsel, the Uniform Code was complied with; that is, the accused was assigned military counsel, and he expressly excused him from further participation in the case. If we add to this skeleton the flesh of the surrounding circumstances, we have more to consider.
Success or failure at trial may depend on the degree of preparation for trial. Circumstances which justify last minute substitution of court members, or the law officer, may not necessarily justify removal of appointed defense counsel who has engaged actively in preparation of the ease. Cf. United States v Boysen, 11 USCMA 331, 29 CMR 147; United States v Grow, 3 USCMA 77, 11 CMR 77; United States v Whitley, 5 USCMA 786, 19 CMR 82. Once entered into, the relationship between the accused and his appointed military counsel should not be severed or materially altered for administrative convenience. Appointed military defense counsel is a part of the defense team; and there are cogent reasons which may lead an accused to request that he be associated with civilian defense counsel. Unjustified interference with the joint endeavors of appointed and selected defense counsel may be prejudicial to the accused. Consequently, a formal and technical designation of military defense counsel may hardly satisfy the substance of accused’s right to be represented by both a civilian lawyer and appointed defense counsel. In the absence of unusual and compelling circumstances, therefore, I would not look with favor upon the appointment of new military counsel on the eve of trial. Scrutiny of the record in this case, however, convinces me there is a total absence of any risk of prejudice to the accused.
Major Kennedy did not in fact take any part in the preparation of the case. It is undisputed that he was absent from the command at all times material to the issues before us. It is also undisputed that his absence was occasioned by legitimate command reasons, and not by any ulterior motive to deprive the accused of his services. In addition, the accused’s civilian lawyers, who described themselves as “chief counsel” and “associate counsel,” respectively, had represented the accused at the previous trial of the case, and on the review by the board of review. Patently, they were thoroughly informed about the case and experienced in courts-martial procedures.
As to Lieutenant Muraoka’s position, the accused had no right to complain about his lesser rank and experience in relation to Major Kennedy or to trial counsel. An accused is entitled to a qualified trial lawyer. Qualification can hardly be predicated only on rank and years of admission to the bar. See Sherman v United States, 241 F2d 329 (CA9th Cir) (1957). True, Lieutenant Muraoka was not very familiar with the ease, but the accused did not ask for a continuance on that ground. As I pointed out earlier, Mr. Smith, the accused’s “chief counsel,” did not desire Lieutenant Muraoka to act as associate counsel. Finally, nothing was oifered to show that Major Kennedy was desired as individual military counsel and that he would be available for appointment as such military counsel on his return. On the facts before him, therefore, the law officer had ample reason to overrule the defense objection to the substitution of appointed counsel on the grounds presented by the “chief” defense lawyer. The record clearly shows the accused was represented by competent and fully-prepared civilian lawyers of his own choice; and that he voluntarily and with full knowledge of the material circumstances excused his appointed military counsel from further participation in the case.
I have examined the claim of error as to the admission of certain testimony. I am satisfied that if there was error, the error did not prejudice the accused. I would affirm the decision of the board of review.