(concurring):
I concur.
I join in the opinion of the Chief Judge, and his negative answer to the certified question.
As the record shows, Mr. Busscher, as individual civilian defense counsel, had already been in the case for over a month, at the time of trial. He had actively participated in the preparation of the defense. Also appearing for accused was a second civilian lawyer named Raymond. Lieutenant Roberts, who was appointed as accused’s military defense counsel upon Captain Santos’ departure, on June 7, 1963, had already been in the case in the capacity of assistant military counsel for over a month at that time. But regardless of whether that relationship is significant, Roberts had primary responsibility for the ten-day period until trial commenced on June 17th. It is also to be noted that the June 17th trial date was itself fixed as the result of a defense request for even a longer postponement. And the defense was put on notice at the time of this early request that delay beyond June 17th would be complicated by separation of prospective witnesses and other factors.
Captain Santos, of course, was not present at trial, being away on emergency leave. With regard to his subsequent availability, it would appear that the defense was hopeful he would return shortly but, as I read the record, there could be no assurance of that fact with his father in extremis, and surely the law officer could not at that time have known Santos would be back two days after this three-day trial was completed, as we were informally apprised in oral argument.
I do not understand this Court to be in disagreement over the applicable law in this instance. Manifestly, individual civilian defense counsel’s motion for a continuance until Santos might return is one within the sound discretion of those ruling on the same; in this instance, ultimately the law officer. And the full circumstances germane to the situation are spread on the record for our consideration. In view of the items outlined above, and for the reasons set forth by the Chief Judge, I cannot say that the law officer abused his discretion in denying the request for a continuance. As we said in United States v Tellier, 13 USCMA 323, 328, 32 CMR 323;
“. . . as we view this record, the convening authority originally had two possible courses of action open to him. When it first came to his attention that Major Kennedy was otherwise employed, he might appropriately have relieved him for good cause and appointed new counsel to represent the accused in association with individual counsel. Cf. United States v Boysen, 11 USCMA 331, 29 CMR 147; United States v Greenwell, 12 USCMA 560, 31 CMR 146. He might also have determined to retain Kennedy in the case and granted the delay requested on April 4 until his return. His failure to follow either route until Muraoka’s appointment the evening before trial, compounded as it was by the law officer’s subsequent refusal to grant any delay in the case, effectively deprived the accused of the services of appointed counsel both in the pretrial and trial phases of the case.”
Neither do I find, under the circumstances of the instant case, any abuse of discretion as to, or improper limitation of, accused’s right to “military counsel of his own selection, if reasonably available” under Article 38(b), Uniform Code of Military Justice, 10 USC § 838. Cf. United States v Cutting, 14 USCMA 347, 34 CMR 127; United States v Vanderpool, 4 USCMA 561, 565, 566, 16 CMR 135.
Accordingly, I join in reversing the decision of the board of review.