(concurring in the result) :
I concur in the result reached by Chief Judge Quinn. I do not agree with all of the reasons given by him in reaching that result. Because the routes we follow are so divergent, I feel it is requisite that my views be separately stated.
The Congress has power “to make Rules for the Government and Regulation of the land and naval Forces,” Constitution of the United States, Article I, Section 8, Clause 14. This power is entirely separate from the Congressional judicial powers as outlined in Article III of the Constitution. This is made clear in the early case of Dynes v Hoover, 20 Howard 65 (U. S. 1858), in the following language:
“These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed that the two powers are entirely independent of each other.”
An accused before a court-martial is not entitled to a, jury trial. Ex parte *42Milligan, 4 Wall 2, 123 (U. S. 1866) ; Ex parte Quirin, 317 US 1, 87 L ed 3, 63 S Ct 2 (1942); United States v Culp, 14 USCMA 199, 33 CMR 411.
A court-martial must be convened in faithful compliance with the statute under which it is authorized as is made clear by the following language of the Supreme Court:
. . A court-martial is the creature of statute, and, as a body or tribunal, it must be convened and constituted in entire conformity with the provisions of the statute, or else it is without jurisdiction.” [McClaughry v Deming, 186 US 49, 62, 46 L ed 1049, 22 S Ct 786 (1902).]
“. . . To give effect to its [the court-martial] sentences, it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with, and that its sentence was conformable to law.” [Runkle v United States, 122 US 543, 556, 30 L ed 1167, 7 S Ct 1141 (1887).]
It would therefore appear that it is neither necessary nor desirable to cite and analyze cases governing the formation of a jury in a trial before a court created and proceeding under the judicial power conferred by Article III of the Constitution in evaluating the formation of a court-martial under a statute passed by the Congress in the exercise of the power to make rules for the government and regulation of the land and naval forces conferred by Article I as the “two powers are entirely independent of each other.” Dynes v Hoover, supra. Our inquiry in the case at bar should be limited to consideration as to whether, in the formation of the court-martial, the convening authority complied with the provisions of the statute.
Article 25(c)(1), Uniform Code of Military Justice, 10 USC § 825, makes it abundantly clear that any (or all) enlisted persons are eligible to serve on general and special courts-martial, where enlisted members are requested by the accused and within the other limitations expressly provided in Article 25, supra. The selection of enlisted men is, by Article 25(d) (2), committed to the sound discretion of the convening authority. There is, however, the strong direction of Article 25(d)(1) that, “When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade.”
In this separate opinion it shall be my purpose, by consideration of the statutory provisions, the legislative history of the provision for enlisted members of courts-martial, and other considerations, to point out that the convening authority acted in conformity with such statutory provisions; and that the appellant was tried by a fair and impartial court-martial.
The issue pending before us for decision is contained in the language of the granted assignment as follows:
“THE INTENTIONAL AND SYSTEMATIC EXCLUSION FROM AN ENLISTED COURT-LIST OF MEMBERS OF LOWER ENLISTED GRADES, OTHERWISE ELIGIBLE, IS UNLAWFUL, AND IN THIS CASE, SUCH EXCLUSION DEPRIVED THE ACCUSED OF MILITARY DUE PROCESS.”
It is to be noted that the appellant does not contend the court-martial which tried him was biased or prosecution minded. He does not contend the members appointed were not qualified, nor is there any indication the appellant did not receive a fair trial. Rather, he alleges that “Senior noncommissioned officers, quite naturally, would view a disturbance in a barracks in a different light than would lower grade enlisted men, and it is strenuously submitted that such senior noncommissioned officers would be likely to consider the entire matter more as a breakdown in discipline than anything else.”1 There is, *43however, no contention that those who served on this court-martial were so oriented. Therefore, the naked question presented concerns the consideration for appointment and the appointment, as members of the court-martial, of senior noncommissioned officers only.
Appellate Government counsel vigorously contend that inasmuch as this question was first raised by an “Article 38 (c) Brief” which was never presented to the convening authority; there was an absence of objection at the time the court-martial was convened as to the manner in which it was selected; the appellant failed to exercise any challenge for cause or peremptorily challenge any officer-member; and since he did not in any manner raise an issue relative to the composition or the manner of its selection; appellant is now precluded from raising the objection for the first time on appeal.
I am not prepared to say all of these objections are without merit. Indeed, orderly procedure obviously dictates that any complaint regarding the composition of a court-martial should be raised at the earliest opportunity, where prompt action may be taken to rectify any defect. On the other hand, the importance of the issue involved, the earnestness with which it is presented, the fact that there are additional cases containing the identical question pending disposition by us, and other considerations, in my opinion, render it highly desirable, if not essential, that we proceed now to its determination.
I
In military jurisprudence, courts-martial were composed of officers only from time immemorial. At the conclusion of World War I and, again, at the conclusion of World War II, there was bitter complaint, from those who had served, against the manner in which military justice had been administered, including the exclusion from courts-martial of all enlisted personnel. These complaints gave rise to the consideration of these questions by a number of committees, commissions and boards, both officially appointed and privately convened.
The proposal that enlisted men be eligible to so serve was recommended, officially, to the House of Representatives, during the 79th Congress, through a report of a subcommittee of the Committee on Military Affairs, which was investigating the national war effort, the report being authored by Honorable Carl Durham, a Representative from North Carolina (House Report No. 2722, 79th Congress, 2d Session, page 2 (1946)).
During the 80th Congress, on March 12, 1947, Honorable Robert P. Patterson, Secretary of War, forwarded to the Speaker of the House of Representatives a draft of a bill entitled:
“A bill to amend the Articles of War to improve the administration of military justice, to provide for more effective appellate review, to insure the equalization of sentences and for other purposes.”
This draft bill was offered in the House of Representatives and became H. R. 2575, 80th Congress, 1st Session. It is to be noted that this bill constituted proposed amendments to the existing Articles of War, governing the Army. Included therein was a proposed amendment to “Art 4. Who May Serve on Courts-Martial,” the second subsection thereof reading as follows:
“All enlisted persons in the active military service of the United States or in the active military service of the Marine Corps when detached for service with the Army by order of the President, shall be competent to serve on general and special courts-martial for the trial of enlisted persons and persons of these categories shall be detailed for such service when deemed proper by the appointing authority.” [Emphasis supplied.] [Hearings before House Armed Services Committee on H. R. 2575, 80th Congress, 1st Session, page 1904.]
It is to be noted that H. R. 2575 was referred to the Legal Subcommittee of the Committee on Armed Services, of which Honorable Charles Elston, a Representative from Ohio, was Chairman, and upon the adoption of the bill *44it became popularly known as the “Elston Act.”
At that time the Under Secretary of War represented the Secretary of War in the administration of military justice. Honorable Kenneth C. Royall, Under Secretary of War, appeared before the Elston Subcommittee to interpret and give the Department’s views with reference to the pending bill. In explaining the provision for enlisted men as members of courts-martial, Secretary Royall stated:
“The bill would make qualified senior enlisted personnel — here is another point that has caused a great deal of criticism, and I am going to discuss that a little more fully later on — from other units than that of the enlisted man tried eligible to serve as members of general and special courts martial which try enlisted men, this to be done within the discretion of the appointing authority.
“As to enlisted men on the courts . . . the bill follows the recommendation of the American Bar Association Committee. The belief has been expressed in some quarters that enlisted men should be required on all courts trying enlisted men and that the matter should not be left discretionary with the appointing authority. On the other hand, there is a definite feeling that enlisted men may not wish to be tried by other enlisted men. And some combat commanders feel that it would be detrimental to discipline to have enlisted men on courts. For these reasons, I think, the committee left the matter flexible — at least those are our reasons for approving the committee’s recommendation.
“The second thing is they found that the enlisted men who were in authority — the sergeants and the corporals — were in many instances inclined to be considerably harsher than the officers, which from my experience in World War I was certainly the case. I don’t know whether they have changed since then or not.”
[Emphasis supplied.] [House Hearings, supra, pages 1920-1923.]
Brigadier General Hubert D. Hoover, Assistant Judge Advocate General in charge of military justice matters of the Army, testified, in part, as follows:
“As we conceive it, the appointment of enlisted persons is designed not to expand the groups of persons who may be eligible to serve on courts martial in order that we shall have an additional reservoir of eligibles, but, if we may put it that way, the appointment is authorized in deference to what appears to be the public demand for participation by enlisted persons in courts martial.
“Another consideration which comes to me is that the ordinary enlisted man who is selected for court-martial duty will probably be one of noncommissioned grade, because of his capacity and his experience. I think that the enlisted man who is being tried is due for a pretty serious disappointment, when he gets his sentence, because I really think that the noncommissioned officers will be harder with respect to punishment than officers will be.” [House Hearings, supra, pages 2019, 2022.]
In reporting H. R. 2575, with amendments, to the House of Representatives and recommending that the bill, as amended, be passed, the committee stated the manner in which it had amended the War Department’s proposal as to the language of Article 4 of the Articles of War with a very significant observation as follows:
“Should enlisted men be authorized to sit as members of a court martial in the trial of other enlisted men?
“The War Department agrees that they should, at the option of the appointing authority. Our committee agrees that they should, at the option of the defendant and has amended section 3 accordingly. We seriously doubt that the inclusion of enlisted men as members of the court will benefit enlisted men who are defendants, however, the choice is properly a right of the defendant. Once hav-*45mg exercised that right he must assume the responsibility for the results of his choice.” [Emphasis supplied.] [House Report No. 1034, 80th Congress, 1st Session, page 6.]
The provision, as thus amended, passed both the House of Representatives and the Senate and became law. The Elston Act also contained, as a part of Article of War 4, substantially the same language as presently appears in Article 25 (d) (2) of the Code as to considerations to be observed by the appointing authority in convening a court-martial, except that it also contained the provision, “officers and enlisted persons having less than two years’ service shall not, if it can be avoided without manifest injury to the service, be appointed as members of courts-martial in excess of minority membership thereof.”
It is manifest that the committee and the Congress granted, in Article of War 4, wide discretion to the appointing authority in choosing those to compose the court-martial. It is equally manifest that had the Congress intended that such Article be construed as now contended by appellant, it had full authority. by appropriate language, to so provide. Rather, with a frank caveat from the highest civilian official and the highest military official of the War Department, having responsibility for the administration of military justice, that the language used would result in the appointment of noncommissioned officers or qualified senior enlisted personnel, nevertheless the Congress adhered to the language used by such officials in their draft bill. That the committee agreed such personnel would be appointed, and that they could be expected to be harsher than commissioned personnel is rendered indisputable by the language of the committee report expressing serious doubt that such enlisted men on courts-martial would benefit the defendant, and its even stronger caveat that: “Once having exercised that right he must assume the responsibility for the results of his choice.”
II
With this background and legislative history of the introduction of enlisted men as members of courts-martial, I proceed to a consideration of the circumstances surrounding the enactment of Article 25, Uniform Code of Military Justice, 10 USC § 825.
The Elston Act was approved by the President on June 24, 1948, 62 Stat 604, 627, Public Law 759, 80th Congress. On February 8, 1949, Honorable James Forrestal, Secretary of Defense, forwarded to the Speaker of the House of Representatives a draft of a proposed bill “To unify, consolidate, revise, and codify the Articles of War, the Articles of the Government of the Navy, and the disciplinary laws of the Coast Guard, and to enact and establish a Uniform Code of Military Justice.”
Article 25 of this draft bill followed the provisions of Article of War 4 of the Elston Act, but contained sufficient difference in language to justify the quotation of the whole thereof herein:
“ART. 25. Who may serve on courts-martial.
“(a) Any officer on active duty with the armed forces shall be com-potent to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.
“ (b) Any warrant officer on active duty with the armed forces shall be competent to serve on general and special courts-martial for the trial of any person, other than an officer, who may lawfully be brought before such courts for trial.
“ (c) Any enlisted person on active duty with the armed forces who is not a member of the same unit as the accused shall be competent to serve on general and special courts-martial for the trial of any enlisted person who may lawfully be brought before such courts for trial, but he shall be appointed as a member of a court only if, prior to the convening of such court, the accused has requested in writing that enlisted persons serve on it. After such a request, no enlisted person shall be tried by a general or special court-martial the membership of which *46does not include enlisted persons in a number comprising at least one-third of the total membership of the court, unless competent enlisted persons cannot be obtained on account of physical conditions or military exigencies. Where such persons cannot be obtained, the court may be convened and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.
“For the purposes of this article, the word ‘unit’ shall mean any regularly organized body as defined by the Secretary of the Department, but in no case shall it be a body larger than a company, a squadron, or a ship’s crew, or than a body corresponding to one of them.
“(d) (1) When it can be avoided, no person in the armed forces shall be tried by a court-martial any member of which is junior to him in rank or grade.
“(2) When convening a court-martial, the convening authority shall appoint as members thereof such persons as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No person shall be eligible tó sit as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.” [Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 572.]
It should be noted that the above Article 25(d) (1) is a provision which had existed in the Articles of War for many years. Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 71. The language of Article 25 (d) (2) was orginally enacted by Act approved June 4, 1920, 41 Stat 759.
The proposal for the adoption of a Uniform Code of Military Justice was referred, by the Committee on Armed Services, to a subcommittee of which Honorable Overton Brooks, a Representative from Louisiana, was Chairman, and that subcommittee held extended and exhaustive hearings on its proposals.
The question of the eligibility and selection of enlisted men as members of courts-martial was again discussed by this second subcommittee to study the question. At that time a total of fifteen courts-martial containing enlisted men had been held and full information with reference thereto was available to the subcommittee. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 727.
Among others, George A. Spiegelberg, Esquire, Chairman of the Special Committee on Military Justice of the American Bar Association, addressed himself to this question, testifying, in part, as follows:
“Mr. SPIEGELBERG. Oh, you are talking about the enlisted men on the court.
“Mr. RIVERS. That is what I am talking about.
“Mr. SPIEGELBERG. I am sorry, perhaps I misunderstood you completely. Frankly, and this has been discussed at length in the American Bar Association, we do not think that you get very far by having enlisted men on courts.
“Mr. RIVERS. It is not going to hurt.
“Mr. SPIEGELBERG. No, absolutely no.
“Mr. RIVERS. I do not think so.
“Mr. SPIEGELBERG. If it gives the enlisted man a feeling of confidence—
“Mr. RIVERS. That is right.
“Mr. SPIEGELBERG. That he might be able to have some of his peers on the court—
“Mr. RIVERS. That is right.
“Mr. SPIEGELBERG. Certainly the experiment can do no harm. But my shrewd guess would be that most of the enlisted men who serve on courts will either be master sergeants *47or tech sergeants with from 6 years’ service up and that they will be more severe in their judgment of the man on trial than would officers.
“But I agree completely. It does no harm and it may do good.
“Mr. RIVERS. That is right.
“Mr. GAVIN. Why would it necessarily have to be a sergeant or a master sergeant?
“Mr. SPIEGELBERG. It would not. But, I say, my guess is that you will find in most cases the enlisted men on the court will be either first or second grade.
“Mr. PHILBIN. Why should that follow, necessarily?
“Mr. SPIEGELBERG. Well, I do not know why except that those are the enlisted men that the commander or the junior officer — the company commanders — know and they are the men that they actually select and recommend as being qualified for court-martial duty.
“Mr. PHILBIN. Of course, in doing it, you could see that it would be a fair representation of all enlisted men, of all ranks, and so forth.
“Mr. SPIEGELBERG. You could. But I think it is not more than a third now on the court and that would mean at most two on the average court, and it would be pretty hard to administer such a provision.
“I do not say it could not be done. I think it is better not to try to specify — .” [ Ibid, pages 715, 724.]
After having heard testimony as to the manner in which the amended Article of War 4, making enlisted men eligible for membership on courts-martial, had been construed and administered, the Congress saw fit to reenact the same in substantially the same language. That no oversight was involved is evident. The fact that the Congress saw fit to change some of the language of Article of War 4 in readopting it as Article 25, places it beyond cavil that Congress recognized and ratified the prior interpretation made by the War Department, the executive department charged with responsibility for its interpretation. United States v Davis, 12 USCMA 576, 31 CMR 162; United States v Littrice, 3 USCMA 487, 13 CMR 43; United States v Scheunemann, 14 USCMA 479, 482, 34 CMR 259.
III
Turning now to the language of Article 25(d)(1) and 25(d)(2), it is observed that the same is neither doubtful, obscure nor ambiguous, and resort to rules of statutory construction is unnecessary. United States v Davis, supra. The first clear and positive direction to the convening authority in appointing a court-martial is that: “When it can be avoided, no person in the armed forces shall be tried by a court-martial any member of which is junior to him in rank or grade.” This is an ancient provision of military law. Winthrop, supra. The plain and unambiguous meaning of this provision is that an accused before a court-martial is to be tried by his superiors, not by his peers or equals as is the case of a civilian defendant before a jury.
The direction of Article 25 (d) (2) is that the convening authority shall appoint as members thereof such persons as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. It would be difficult to conceive of words with which more adequately to commit the selection to the sound discretion of the convening authority. If the person under consideration for appointment is not junior to the accused, the selection is of those who “in his opinion” are best qualified. The guidelines established are those which, among other worthwhile qualifications, tend to the accumulation of rank or grade. We are not blind to, nor ignorant of, the fact that under statutory provisions and ancient military procedures, age, education, training, experience, and length of service, do produce an accumulation of military rank and grade. This determination is within the sound discretion of the convening authority. He may not abuse that discretion by the choice of individuals who are not fair and impartial, He can no more “stack” the *48court against the interests of the accused than he can pollute the court by command control or influence against him. United States v Hedges, 11 USCMA 642, 29 CMR 458; United States v Kitchens, 12 USCMA 589, 31 CMR 175. In the case before us there is no contention nor intimation that the convening authority abused his discretion in the selection of the individuals who composed the court, nor that any of them were other than fair and impartial.
IV
In an able and exhaustive brief, appellate defense counsel point out that in a long series of cases, which they cite, the Supreme Court has established certain general rules which are now followed by the Supreme Court and other Federal courts as well. Counsel conclude that, broadly stated, the major rules are as follows: (1) An accused is not entitled to any particular kind of jury; (2) an accused has no right of inclusion on the panel of any person or class of persons; but (3) an accused is entitled to a fair and impartial jury drawn from a panel from which no class of eligible persons was systematically, arbitrarily, and purposefully excluded because of membership in that class or prejudice against that class.
Most likely counsel has analyzed the Federal cases correctly and has come to a justifiable conclusion with reference to those cases. However, the fact remains that in a military trial, an accused is entitled to no jury, but to a court-martial chosen in accordance with Article 25, Uniform Code of Military Justice, supra, the system of military justice provided by Congress in the exercise of its constitutional power to make rules for the government and regulation of the land and naval forces. Ex parte Milligan, 4 Wall 2, 137-138 (U.S. 1866) ; Ex parte Quirin, 317 US 1, 87 L ed 3, 63 S Ct 2 (1942); United States v Culp, 14 USCMA 199, 33 CMR 411. The language used in DeWar v Hunter, 170 F2d 993 (CA10th Cir) (1948), cert den 377 US 908, 93 L ed 1720, 69 S Ct 1048 (1949), well and properly states the law:
“Appellant’s contention that a court-martial constituted to try a private soldier, composed entirely of officers, violates the 6th Amendment of the Constitution, in that it denies him a right to a trial before his peers or equals, is not well founded. The right of trial by jury guaranteed by the 6th Amendment to the Constitution of the United States is not applicable in a trial by military court-martial. Hence, decisions respecting the right to trial by one’s peers in civil courts are inapplicable. A soldier is subject to military law and what constitutes due process in a trial by a military tribunal is gauged by the principles of military law enacted by the Congress, provided the accused is given due notice of the charge against him, a fair opportunity to prepare his defense, and his guilt is adjudicated by a competent tribunal.”
The conclusion of the Court of Appeals for the Tenth Circuit is confirmed by those decisions of the Supreme Court holding unconstitutional provisions- of the Uniform Code of Military Justice subjecting certain categories of civilians to trial by court-martial. The burden of those cases is that Congress may make liable to trial by court-martial only persons in military status and subject to military law, for the reason that civilians are not subject to those exceptions to constitutional protections and due process which apply to those in military status. Toth v Quarles, 350 US 11, 100 L ed 8, 76 S Ct 1 (1955); Reid v Covert, 354 US 1, 1 L ed 2d 1148, 77 S Ct 1222 (1957) ; Kinsella v United States, 361 US 234, 4 L ed 2d 268, 80 S Ct 297 (1960) ; McElroy v Guagliardo, 361 US 281, 4 L ed 2d 282, 80 S Ct 305 (1960); Grisham v Hagan, 361 US 278, 4 L ed 2d 279, 80 S Ct 310 (1960). Thus the cases cited by the defense and which control in the selection of juries in civilian courts have but limited application to an accused before a court-martial, and none toward this accused.
Attention has been given to the fact that the issue as granted refers to the “intentional and systematic exclusion from an enlisted court-list of members of lower enlisted grades.” Article 25, Uniform Code of Military Justice, *49supra, does not provide for any lists of prospective court members, in the sense that panels of prospective jurors must be formulated or persons drawn therefrom by lot or otherwise. Rather, that Article places the responsibility and grants the discretion to the convening authority to appoint the court members from no list or from any list. This record indicates that one of the enlisted men contemplated for the court was chosen by the convening authority on his own responsibility. Attention has also been given to the fact that this is the only case upon which enlisted men had served upon a court-martial in the area in which this trial was had over a protracted period and no evidence as to whether during any other time enlisted men had been requested in any other case. It is doubtful that this one case could show anything to be systematic.
In view of the fact that Article 25, Uniform Code of Military Justice, supra, places the selection of the officer and enlisted members of a court-martial within the sound discretion of the convening authority and there being no evidence or contention of abuse of that discretion in the choice of the individuals who served on the court-martial, no error is reflected by this assignment.
Proceeding to the consideration of the efforts made by the convening authority to secure a Negro enlisted man as a member of the court-martial, I concur with the Chief Judge in his conclusion and the reasoning by which he reached the same. Here, again, there is no contention the enlisted man selected and appointed by the convening authority was biased, prosecution minded nor in anywise other than a fair and impartial member of the court. One of the officer-members was also of appellant’s race, a Negro, and no complaint is made as to his membership on the court. This record reveals no more than that, in the exercise of his discretion, the convening authority chose this court member as qualified for membership on the court. As the Chief Judge points out, this contention is without merit.
I agree, the decision of the board of review should be affirmed.
The charges and specifications and record of trial reflect that rather than this being a simple disturbance in the barracks, the accused was convicted of throe specifications of assault with a deadly weapon (one specification by kicking the victim in the head with his foot encased in a shoe and two by brandishing an open straight edged razor) during a fight in the barracks.