(dissenting):
I dissent.
Seldom have I seen a more speculative attempt to explain away error apparent on the face of a record. The question before us is not whether the court member was in fact disqualified or whether he deliberately concealed his knowledge of the accused’s past but whether the matter should have been made known to defense counsel in open court in order that it might be properly explored. As the basis for the comment and its possible effect on the member in his deliberations on the findings and sentence remains shrouded in doubt, I would set aside the findings and sentence. As my brothers conclude otherwise — and, in my view, quite without foundation in law or fact — I must record my disagreement with the result which they reach.
Brought before a general court-martial upon charges of robbery, two assaults with a dangerous weapon,1 and escape from lawful confinement, in violation, respectively, of Articles 122, 128, and 95, 10 USC §§ 922, 928, and 895, the accused was found guilty and sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. The convening authority set aside the findings of guilty of escape from confinement and reassessed the sentence, approving only so much thereof as provided for bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. The board of review affirmed, and we granted accused’s petition upon an assignment of error dealing with the reference by an unidentified court member to the purported reduction of the accused.
At the outset of the trial, counsel for the United States noted that the records of the case disclosed no ground for challenge and stated:
*357“. . . If any member of the court or the Law Officer is aware of any facts which he may believe may be grounds for challenge by either side against him should now state such facts.”
There was no response by the court members or the law officer to this inquiry.
Defense counsel conducted an extensive voir dire examination prior to determining whether to exercise his right to challenge. There was no answer from the court to questions involving whether any member “is familiar with or knows the accused”; or “[has] heard any discussion whatsoever concerning this ease.” Subsequently, a court member, after reading copies of the charges and specifications distributed by the trial counsel, stated that the alleged victims were members of his battalion. Another member then volunteered that he had “heard about this case.” After further questioning, defense counsel indicated his acceptance of both as jurors.
In substance, the evidence before the court-martial tended to establish that the accused, in company with other Marines, on March 19, 1961, assaulted two noncommissioned officers in Taki-gahara, Japan, with his feet and a plaster east in which his arm was encased. One victim’s wallet was taken. Other evidence established that accused was detained in a so-called “security area” at Camp Hansen, Okinawa, as a “liberty risk,” and departed therefrom without authority on May 21, 1961.
Following instructions by the law officer, the court retired to deliberate upon accused’s guilt or innocence. After arriving at their findings, the members called the law officer into closed session to place them in proper form. In reading the proposed form of verdict to the court, the law officer provoked the following colloquy:
“PRES: Do we all agree?
“MEMBER: I think that he’s a PFC though. He’s a PFC.
“MEMBER: No, he’s a private. He was busted at office hours.
“LO: Well, Gentlemen, we’ll recall the court, the counsel rather.”
Upon reconvening, the court-martial announced its findings of guilty and the presentencing proceedings were had. At no time was the defense made aware of the comment of the court member.
The right to challenge members of a court-martial is an important part of military due process. United States v Clay, 1 USCMA 74, 1 CMR 74. When the right is infringed by denial of an opportunity to examine a court member on voir dire, prejudicial error is committed. United States v Lynch, 9 USCMA 523, 26 CMR 303. And, in order to assist in the effective exercise of the right to challenge, the President, under the authority granted him by Congress in Uniform Code of Military Justice, Article 36, 10 USC § 836, has promulgated a rule of procedure which requires the affirmative disclosure by court members of knowledge on their part which might constitute a ground for their disqualification. Manual for Courts-Martial, United States, 1951, paragraph 62b.
In United States v Schuller, 5 USCMA 101, 17 CMR 101, we were confronted with the failure of the law officer or trial counsel to disclose that the former had previously acted in the case as staff judge advocate. A majority of the Court, Judge Latimer dissenting, ordered reversal, pointing out that “under the Manual, trial counsel and the law officer have an affirmative duty to disclose any ground for challenge which may exist.” United States v Schuller, supra, at page 105. In United States v Washington, 8 USCMA 588, 25 CMR 92, we reaffirmed our decision in the Schul-ler case, the Chief Judge declaring for a unanimous Court, at page 590:
“An accused is entitled to be tried by an impartial court. United States v Deain, 5 USCMA 44, 17 CMR 44. To that end, a court member must disclose any ground which might disqualify him from sitting. Manual for Courts-Martial, United States, 1951, paragraph 62(b); United States v Richard, 7 USCMA 46, 50, 21 CMR 172.” [Emphasis supplied.]
Turning to the transcript, we find, as noted above, that the court members upon voir dire examination disclaimed *358by their silence any knowledge or familiarity with the accused and denied hearing “any discussion . . . concerning this case.” After the precise charges were made known, one member recognized the names of the victims and another declared that he had heard of the incident. Still, no one disclosed any information concerning the accused or his background. Yet, in the subsequent closed session discussion of the form of the findings, a member volunteered his knowledge that accused had been rer duced to the grade of private and that such action had taken place under the provisions of Code, supra, Article 15, 10 USC § 815. Despite the member’s previous silence concerning any relationship with the accused, the law officer took no action on the record to bring the matter to the attention of accused and his counsel in order that further inquiry might be made in the matter. Hence, the situation before us is one in which the defense — deliberately or otherwise — was kept in ignorance of the existence of possible disqualifying facts. United States v Schuller; United States v Washington, both supra.
True it is that the mere knowledge of an accused’s previous punishment under Code, supra, Article 15, is not per se a reason to sustain a challenge for cause. We found as much in the Washington case, supra. The point is that the existence of such knowledge on the part of a member — previously concealed on voir dire■ — indicates that he may have been aware of other facts in connection with the accused which he also failed to make known during the challenging process. If it had been brought to the attention of defense counsel, inquiry could have been made and the matter settled. The failure by the member and the law officer so to make the information available kept counsel in ignorance and effectively prevented exercise of the accused’s right to conduct a further voir dire. United States v Schuller; United States v Lynch, both supra. Thus, the matter was completely foreclosed without reference to the parties most interested in it. Cf. United States v Bruce, 12 USCMA 410, 30 CMR 410; United States v Caldwell, 11 USCMA 257, 29 CMR 73.
Moreover, had the information been made available to the accused at the proper point in the trial — if it was in fact concealed by the member in question upon the defense inquiry into his knowledge of the accused and the case— action with respect to the exercise of his peremptory challenge might well have been different. Proper disclosures on voir dire are equally important to the use of this right and, although the knowledge thus divulged does not constitute a ground for a challenge for cause, it will frequently dictate the choice of the member to be eliminated without assigning a reason. United States v Parker, 6 USCMA 274, 279, 19 CMR 400, 406.
It is for these reasons that I believe reversal is compelled. The author of the principal opinion may be correct when he stated that the member might have deduced the fact of reduction from the differing grades shown in the charge sheet, but the record is certainly silent as to such having been accomplished at “office hours.” And the opinion surely errs in concluding that the member could infer the use of nonjudicial punishment from accused’s appearance before his battalion commander and detention in the “security area,” for the witnesses made it quite clear that the “appearance” and detention were not in connection with criminal proceedings but because accused and certain other Marines were deemed “liberty risks.” Indeed, the accused could not be placed in confinement under the mentioned Article, for he was not “a person attached to or embarked in a vessel.” Code, supra, Article 15.
In any event, these considerations are really immaterial. The court member could have as easily obtained his information from sources outside the court and have been aware of enough of accused’s background and prior conduct to render his disqualification imperative. The law officer’s failure to disclose what he had learned in the closed session effectively foreclosed a defense examination of the issue, and we are left nothing but conjecture and speculation upon which to build our view of the member’s sources. In good con*359science, I cannot join in an opinion so predicated. I would reverse the decision of the board of review and order a rehearing.
The law officer dismissed one specification of assault with a dangerous weapon on the basis of multiplicity of the charges.