(dissenting):
I dissent.
With all respect, I must disagree with the overturning by my brothers of the well-considered decision of the board of review and consequent approval of the denial to the accused of the services *492of Captain Santos. The question before us is not basically one of the law officer’s discretion in denying a continuance but one of entitlement to counsel. The request for delay was merely the device by which Santos’ reappointment and presence was to be gained. Our disposition of the case should, therefore be governed by principles applicable to representation by military counsel rather than by those governing ordinary requests for continuance.
In order to place the issue in proper perspective, I think it also necessary to recapitulate the evidence surrounding the accused’s desire to be represented by the missing lawyer.
Charges were preferred against the accused at Stead Air Force Base, Nevada, on February 23, 1963, and referred to Captain Robert A. Babcock for investigation on the same day. Sergeant Massey requested Captain Herbert J. Santos as his individually selected legal representative. Captain Santos was declared available and undertook Massey’s defense. Full hearings were held, and Santos participated therein. A psychiatric evaluation of the accused was obtained. Certain recommendations of the investigating officer led to preference of an additional charge and its investigation. Santos again represented the accused. The investigation was finally terminated on April 19, 1963, and forwarded to the officer exercising summary court-martial jurisdiction. That officer in turn forwarded it to the general court-martial convening authority, recommending trial by the highest military tribunal. On May 6, 1963, the charges were duly referred to trial by general court-martial. Captain Santos was appointed defense counsel and Lieutenant Eldon D. Roberts was named assistant defense counsel.
On May 13, 1963, Mr. Harry A. Busscher advised the staff judge advocate he had been retained by the accused as individual civilian counsel. As noted by the principal opinion, a trial date of June 17, was agreed upon by the Government and Mr. Busscher, after some correspondence over conflicts with his civil calendar.
On or about June 7, 1963, Captain Santos asked for emergency leave because of the serious illness of his father. At that time, a continuance was requested until his return from emergency leave. It was refused.
Mr. Busscher was contacted by Santos and his grant of emergency leave was allegedly conditioned upon Busscher’s agreement that the trial would be conducted upon the scheduled date. Busscher stated he “would not keep Captain Santos from going on his emergency leave.” However, he declared, “the continuance of the trial would be over my objection, and I intended to renew my request for a continuance at the time of the trial.”
The emergency leave was nevertheless granted. Captain Santos was formally relieved as trial defense counsel, and Lieutenant Roberts was appointed in his place. On June 11, 1963, the accused addressed a personal appeal to the convening authority, through the trial counsel, for the services of Captain Santos, and a delay of the trial until approximately June 24, 1963, in order that Santos might be present. On June 13, 1963, the convening authority denied the accused’s request on the ground that no reason for Santos’ presence was set forth.
The court-martial accordingly convened on June 17, 1963. Upon the completion of arraignment and prior to entry of the pleas, Mr. Busscher renewed the request for a continuance of the proceedings until approximately June 24, 1963. He made known the foregoing matters, pointed out that Captain Santos had “worked at great length on this case, participated in the . . . 32 investigation,” and that they had “had numerous conferences in connection with this case.” While he had the highest regard for Lieutenant Roberts, Attorney Busscher went on to point out that “Roberts has not had a proper opportunity to investigate this matter” and needed more than a week in which to prepare. Santos had “participated” in the pretrial investigation and had “prepared all the military law on the particular case.” Counsel submitted that the case should be continued.
*493In opposition, the trial counsel pointed out that Mr. Busscher, and a civilian associate, “had since the 13th of May, 1963 to prepare this case.” He alleged that two probable Government witnesses “will be discharged from the Air Force — in fact, one is leaving tonight” and two civilian witnesses were in attendance from Duluth, Minnesota. All this would, because of the continuance, result “in additional time delays and expense to the Government.”
Based on these matters, the law officer denied the motion for continuance, and the trial proceeded to its ultimate verdict and sentence.
In United States v Tellier, 13 USCMA 323, 32 CMR 323, this Court ordered a rehearing when it appeared that the convening authority relieved appointed counsel on the eve of trial and replaced him with a new attorney and accused was also represented by civilian counsel. We there held, over the Chief Judge’s dissent, that under Uniform Code of Military Justice, Article 38, 10 USC § 838, “an accused is entitled as a matter of right to the association of his appointed defense counsel with his individually employed attorneys.” United States v Tellier, supra, at page 327. We found that right denied the accused when it appeared that appointed counsel had been kept absent from the command on extended temporary duty, thereby preventing any consultation between him and accused’s civilian representatives. Moreover, we pointed out, as the Government conceded, that no effort was made to furnish accused with the service of any appointed representatives until the last possible minute. We went on to say, at page 328:
“In short, as we review 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, compoimded 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.” [Emphasis supplied.]
The Government here urges the action of the law officer and the convening authority in denying the brief delay requested is supported by our decision in Tellier, supra, emphasizing that, in this case, the convening authority took our suggested course of action, i.e., as the trial drew near, “he . . . appropriately . . . relieved him for good cause and appointed new counsel.” Tellier, supra, at page 328. But the Government overlooks the fundamental distinction between the Tellier case and the record now before us. There, the defense counsel had merely been formally appointed, had had no contact with the accused, and, indeed, had not been accepted by him as his attorney. United States v Miller, 7 USCMA 23, 21 CMR 149; United States v Brady, 8 USCMA 456, 24 CMR 266. In essence, what the convening authority did was effectively to deny Tellier any right to appointed counsel at all by naming an individual who was continuously absent from the command and replacing him with a new officer the evening before the court-martial convened. Thus, it was entirely proper for us to emphasize that he might have relieved the absent counsel and replaced him in sufficient time to allow for the pretrial consultation and trial work in association with civilian counsel.
Here, however, we deal with the much more serious situation of individually requested counsel who only incidentally became the appointed defense counsel. Captain Santos was made available to the accused at the outset of the pretrial investigation. The attorney-client relationship was immediately formed, and Santos participated actively and extensively in every phase of the pretrial proceedings until they culminated in the *494final reference of tbe charges to trial on May 6. Thereafter, when Mr. Busscher entered the case, he continued to play an active role, engaging in frequent, lengthy conferences with civilian counsel and, in Busscher’s words, preparing all the military law in the case. His relief came only when personal tragedy struck and it appeared that a necessary emergency leave would cause a week’s delay in the proceedings.1 In short, what we deal with here is an individually requested attorney who, under Code, supra, Article 38, had been determined to be reasonably available for all proceedings in connection with the case but who became temporarily unavailable due to unavoidable circumstances. This does not mean that he might be categorically removed from the case and replaced with a new officer, for whose services the accused had not indicated the slightest desire and who had not participated at all in the preliminary proceedings.
In United States v Potter, 14 USCMA 118, 33 CMR 330, we overturned accused’s conviction under almost identical circumstances. There, accused’s trial commenced on November 30th. The president refused a continuance until December 5th for the purpose of securing civilian counsel. We declared, at page 118:
“The right of an accused to counsel of his choice has been adequately established by Article 38(b), Uniform Code of Military Justice, 10 USC § 838. In addition, the Supreme Court in Powell v Alabama, 287 US 45, 77 L ed 158, 53 S Ct 55, 84 ALR 527 (1932), added that ‘the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.’ See also Glasser v United States, 315 US 60, 86 L ed 680, 62 S Ct 457 (1942); United States v Evans, 1 USCMA 541, 4 CMR 133; United States v Tellier, 13 USCMA 323, 32 CMR 323.
“. . . Clearly the accused was forced to proceed without benefit of civilian counsel of his choice.”
And, in United States v Cutting, 14 USCMA 347, 34 CMR 127, we more recently and extensively reviewed the responsibility of a command to furnish an accused with the services of individually requested counsel. There, we stated, at page 351:
“The question is one requiring the exercise of the convening authority’s discretion in light of all the circumstances, including the duties assigned the requested officer, military exigencies, and similar considerations— in short, ‘a balance between the conflicting demands upon the service,’ Henry v Hodges, supra, at page 403, or, to paraphrase the statute involved, a sound reason for denying to the accused the services of the representative whom he seeks.” [Emphasis supplied.]
It is these principles rather than those expressed in United States v Tellier, supra, which should govern here. There must be shown on the record “a sound reason for denying to the accused the services of” Captain Santos, for otherwise Code, supra, Article 38(b), will be reduced to a hollow mockery. The availability of individual counsel may be easily circumscribed by appointing him on orders and applying the more liberal rule laid down in Tellier, supra. That, of course, is not what Congress intended, nor does it form a part of the liberal approach which we espoused in United States v Cutting, supra. Rather, as I understand the law, it is still essential to show the reasonable unavailability of the requested legal representative.
Turning to the facts before us, there can be no doubt that the convening authority’s denial of the brief delay in order to have Santos available and the law officer’s similar action at trial was without adequate foundation. The convening authority’s refusal to grant the *495continuance was expressly predicated on the failure to assign “specific reasons for necessity of presence of Captain Herbert J. Santos.” Yet, as we noted in Cutting, supra, the burden was upon the commander to demonstrate a reason for failing to arrange for Santos’ availability.
The law oificer apparently sailed on the same tack. He refused the week’s delay simply because accused was represented by individual civilian counsel and an appointed oificer. Thus, he saw no prejudice in Santos’ absence. Cf. dissenting opinion, Chief Judge Quinn, United States v Tellier, supra. This cavalier attitude toward the accused’s right to counsel under Code, supra, Article 38, hardly accords with our pronouncements set out above, nor does it find any real foundation in fancied inconvenience to the Government which then had its witnesses present and ready to testify.
As to the latter circumstance, I point out that, had the convening authority paid proper attention to Sergeant Massey’s pretrial request of June 11, 1963, the witnesses may well have been spared their long trek and the Government the inconvenience and expense to which it was put. Moreover, arrangements could undoubtedly have been made either to retain the witnesses expecting discharge under proper subpoenas or else to perpetuate their testimony in the manner prescribed by the Code. In any event, these considerations hardly justify the denial of the accused of his statutory- right to have reasonably available individual counsel present at his trial. United States v Potter, supra; United States v Cutting, supra. In short, I am unable to find any reasonable basis here for denying Sergeant Massey the week’s delay which would have seen Captain Santos’ return and resumption of the duties at which he had labored so long.
Examining the rationale of the principal opinion, I point out once more that it ignores the basic issue of availability of individual counsel and treats the question as one of denial of an ordinary continuance. I suggest the matter cuts far deeper into the fabric of the Code and that the availability of counsel is not to be judged by the same discretionary standards as the usual request for delay. It is too delicate, too important, to fall within that class of rulings which the Supreme Court has said are seldom, if ever, disturbed on appeal. Isaacs v United States, 159 US 487, 40 L ed 229, 16 S Ct 51 (1895). I would accordingly apply the principles which we have heretofore laid down in United States v Potter and United States v Cutting, both supra, in order to give real meaning and effect to the Code’s provisions concerning an accused’s right to individual counsel.
In sum, then, I believe we today make a dangerous departure from precedent by applying the general law of continuances to one involving the absence of individually requested counsel. I also suggest that no real judge would, when an individual counsel’s father unexpectedly becomes seriously ill, refuse a delay of one week in order that the accused might be afforded his right to proper representation. Cf. United States v Potter, supra. Trials must go on, but they should proceed promptly in the calm spirit of regulated justice, not with the haste of the mob. Powell v Alabama, 287 US 45, 59, 77 L ed 158, 53 S Ct 55 (1932).
I would affirm the decision of the board of review.
Indeed, as the Chief Judge notes, Captain Santos actually returned to duty on June 21, 1963. As the continuance requested delay only until June 24, 1963, it is obvious that all parties contemplated such an early ending to his absence,