(concurring in the result):
With due respect for the scholarly approach of my brothers to the certified questions, I would normally decline to join them in reaching the constitutional issue presented to us by The Judge Advocate General. The questions on which our review is sought are purely hypothetical.
As indicated in the principal opinion, the board of review determined that accused’s pleas of guilty were improvident and that multiple prejudicial error existed. Having found that reversal was thus necessitated, it nevertheless went on to hold that the Sixth Amendment to the United States Constitution required an accused tried by special court-martial to be furnished with an appointed military lawyer to defend him. It is the propriety of. the latter obiter dictum which has been certified to this Court.
First, I consider the question before us to be moot, for, whether it be answered in the affirmative or in the negative, the action taken will have the effect of affirming the decision of the board of review. Under such circumstances, we have, in the past, uniformly refused to render purely advisory opinions to The Judge Advocates General. United States v Bedgood, 12 USCMA 16, 30 CMR 16; United States v Arm-bruster, 11 USCMA 596, 29 CMR 412; United States v Storey, 9 USCMA 162, 25 CMR 424; United States v Fisher, 7 USCMA 270, 22 CMR 60.
Second, the refusal to decide moot questions is peculiarly important when a constitutional question is involved. The Supreme Court has many times pointed out the duty of judges to refrain from adjudicating the constitutionality of a legislative enactment unless it was inescapably required. United States v Rumely, 345 US 41, 97 L ed 770, 73 S Ct 543 (1953); *219United Public Workers v Mitchell, 380 US 75, 91 L ed 754, 67 S Ct 556 (1947); Youngstown Sheet and Tube Co. v Sawyer, 343 US 579, 96 L ed 1153, 72 S Ct 863 (1952). It is equally our responsibility to refrain from passing upon and measuring the conformity of Articles of the Uniform Code of Military Justice with the Constitution unless that course is imperative. Cf. United States v Jacoby, 11 USCMA 428, 29 CMR 244.
My brothers, however, have chosen to reach the question and have set down their varying approaches to the problem. As they have done so, I feel it incumbent upon me to record my own views in this area in order that the basic principle involved may be firmly settled.
I am satisfied that the Sixth Amendment, insofar as it pertains to the right of counsel, applies in trials by courts-martial. I am equally satisfied that Private Culp was not deprived of this constitutional right. At the outset of his trial, it was announced on the record that, in accordance with the alternatives available to him under the Uniform Code, supra, Article 38, 10 USC § 838, he chose to be defended by the appointed representatives whose statutory qualifications were so gratuitously called into question by the board of' review.1 The ease before us, therefore, is precisely the same as Romero v Squier, 133 F2d 528 (CA 9th Cir) (1943), cert den 318 US 785, 87 L ed 1152, 63 S Ct 982, the holding in which has since been consistently followed. There, Judge Denman declared, at page 531:
“We hold that an Army officer, chosen, as here, by the accused, admitted by a court-martial to practice for him the arts of a military defense, need not also be admitted to practice by some civil court, in which military law may never have had the slightest consideration, to be the 'counsel’ in a court-martial for which the Sixth Amendment makes provision. So far as concerns the Sixth Amendment, a court-martial counsel, chosen by the litigant and accepted by that body to prosecute or defend litigation there, is the same kind of officer at the bar of that court as is one entitled to practice at the bar of any other court. Cf. Dynes v Hoover, 20 How 65, 82, 15 L ed 838.”
To say that a practice is constitutional is not an endorsement of its wisdom, and when my brothers speak of the training which every officer receives in military law, I understand them to intend only an exposition of the manner in which the anomaly of laymen practicing criminal law developed, rather than to place upon it the stamp of their approval. Indeed, twelve years’ experience under the Uniform Code of Military Justice dictates the need to provide accused tried by special courts-martial and subjected to the heavy consequences of a bad-conduct discharge with counsel who possess legal training and are bound by the ethical obligations of our profession.
An officer of the armed services of necessity cannot receive the training required to perform adequately as counsel for an accused. At the most, he receives a general orientation course in military law during his attendance at various service schools or takes a few sub-courses in various aspects of its administration. At no time is he subjected to the rigorous and intensive process which fits one to become the advocate of an individual enmeshed in the toils of the criminal law. To me, it is just unthinkable to conclude that the best intentioned layman can be taught by attendance at a few generalized lectures to become a capable representative of another in a criminal prosecution. The argument is the same as if one taking a course in business law attempted to represent a large corporation in a merger or antitrust proceedings. And, as military *220appellate authorities well know, the result usually looks like something intended for entertainment at a church social. Indeed, the board of review sounded in this very case the tocsin call of multiple prejudicial error!
Aside from the inability of an officer counsel to perform his duties because of lack of proper grounding in law, there is also the important question of the ethical responsibilities imposed by our profession upon its members. Laymen will never understand an attorney’s devotion to the interests of an “obviously guilty” client or the single-minded loyalty to the latter’s cause which almost unexceptionally characterizes the practice of law. Too often, it must seem to the officer untrained in the law that his duty lies in the direction of the armed force to which he belongs rather than to the accused whom he represents, and there has not been inculcated in him any of the principles which so naturally form a part of the legal profession and which have impenetrably shielded the client’s cause through the ages. It is difficult enough for a military lawyer to withstand the pressures exerted against his principal in the name of discipline and authority. See United States v Kitchens, 12 USCMA 589, 592, 31 CMR 175, 178. It seems to me well nigh impossible for one untrained both in the law and the inviolable standards of the legal profession to put to one side what he might conceive as his responsibility to the service and devote himself entirely to the interests of an individual whom he may privately think undesirable.
Nor, as the Chief Judge states, is automatic appellate review a substitute for utilization of legally trained counsel. As was recently noted by Senator Sam J. Ervin, Jr., a distinguished lawyer, jurist, and legislator, on the floor of the United States Senate:
“. . . In the event the accused is sentenced to a bad conduct discharge by a special court-martial, there will be extensive appellate review oí the findings and sentence pursuant to articles 66 and 67 of the Uniform Code, 10 USC, sections 866, 867 . . . ; but this is a review ‘on the basis of the entire record.’ If evidence or information favorable to the accused has not been placed in the record by his counsel who, by reason of his lack of legal training, may not recognize what evidence would probably benefit the accused — then the appellate defense counsel are unable to take advantage thereof in the accused’s behalf.” [Emphasis supplied.] [109 Cong Rec 13354 (daily edition August 6, 1963).]
The many guilty pleas which we have reviewed on the basis of skimpy transcripts bear eloquent witness to the cogency of Senator Ervin’s comments. How are we to know the real truth of the matters involved, if the accused, upon the advice of a non-lawyer, chooses to confess his guilt judicially and nothing is placed in the record to support the validity of his plea except a formula prated from the Manual for Courts-Martial, United States, 1951 ? We can go only upon the record in measuring its legal sufficiency to support the findings and sentence. Yet, we are truly ignorant of what might have been done had the accused’s evidence been viewed by an attorney thoroughly versed in the law and bound by the sanctions of the Canons of Ethics to advise and counsel with his client in the best traditions of Anglo-American advocacy.
The Army long ago recognized the basic unfairness in sentencing an accused to a bad-conduct discharge when he was represented by lay counsel. Soon after the Code became effective, it took steps to eliminate the penalty in special courts-martial by forbidding the appointment of reporters to prepare the necessary verbatim record of trial. See AR 22-145, and Code, supra, Article 19, 10 USC § 819. In like manner, the Air Force, as Judge Kilday points out, has provided attorneys to represent both the Government and the accused in those cases in which the latter may be subjected to such severe punishment.
We have ourselves decried the dangers in lay practice of law. In consequence, we have resolutely refused to invoke the doctrine of waiver in those instances in which the accused has not *221been represented by trained counsel. United States v Kelley, 7 USCMA 584, 23 CMR 48; United States v Hatter, 8 USCMA 186, 23 CMA 410; United States v Johnson, 14 USCMA 75, 33 CMR 287. And in a related area, we have pointed out that, “Law books unnecessarily in the hands of laymen may be as dangerous to the proper administration of justice as scalpels in the hands of laymen may be to the success of major surgery.” United States v Kentner, 12 USCMA 667, 669, 31 CMR 253, 255.
It is not surprising, therefore, to find legislation pending before the Congress to eliminate the role of the non-lawyer as counsel in special courts-martial. Such is but one of the results of an extensive investigation into the administration of military justice conducted by the Senate Subcommittee on Constitutional Rights. In the words of its distinguished Chairman, Senator Ervin, the penalties suffered by an accused awarded a bad-conduct discharge warrant “the assistance of a qualified attorney” at his trial.- 109 Cong Rec, supra, at page 13351. In light of the fact that there is scant difference between the disgrace and disabilities encountered by one so sentenced and one receiving a dishonorable discharge, I can only note my full agreement with the need for real legal assistance in these cases and my hope that the use of untrained officers as counsel will soon join those other anachronisms with which the history of military law is studded.
Again, in the Senator’s words, “No objective could be more important at the present time than to protect the constitutional rights of the men and women in uniform who stand ready to protect the Constitution of the United States.” 109 Cong Rec, supra, at page 13353.
With these observations, I concur in the result which may brothers reach.
The Government informs us in its brief that the board of review refused to consider affidavits by trial and defense counsel, to the effect that accused was fully advised of his right to request the services of a military attorney to represent him at the trial. Cf. United States v Ferguson, 5 USCMA 68, 17 CMR 68; Code, supra, Article 38.