(dissenting):
I dissent.
This ease presents issues of the gravest concern to the administration of military justice and basically poses the questions whether the right to have enlisted personnel serve on courts-martial is to be enforced as Congress intended or is to be rendered valueless by Army practice, and whether race — a standard so strongly rejected by our Federal constitutional system — is to be allowed to raise its ugly banner as a criterion for membership on our military tribunals. There is no room for disagreement here; there is but a single answer which we can return to these inquiries. Whether by enactment of Congress or constitutional principle, no convening authority may limit selection of enlisted court members to senior noncommissioned officers, nor may he— regardless of motive — deliberately introduce into the military judicial system the practice of selecting a Negro to serve on a court-martial because of the color of the defendant’s skin. Mr. Justice Harlan’s ringing prophecy in Plessy v Ferguson, 163 US 537, 41 L ed 256, 16 S Ct 1138 (1896), is the law which we should this day follow:
“. . . But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” [Plessy v Ferguson, supra, at page 559.]
I regret that my brothers have reached a different conclusion — not because of the consequences to Private Crawford, for the clemency extended him below renders our affirmance of little practical import to him — but because of the incalculable damage done to our system of military justice. To paraphrase Abraham Lincoln, the world *50will little remark what we have done here; it will not soon forget what we have said. While I have not succeeded in persuading them to follow the only-path which I, in good conscience, can adopt, I necessarily record my reasons in order to disassociate myself from conclusions which are difficult to sustain either in logic or in law.
On June 4, 1963, various charges of aggravated assault against the accused were referred to trial by general court-martial. On June 10, 1963, the accused submitted a written request that enlisted personnel be appointed by the convening authority to the general court-martial designated to hear his ease. Affidavits filed by various officers involved in the process of selecting members indicate the following occurred.
According to the sworn declarations of the staff judge advocate, upon receiving the accused’s request, the “adjutant general or his deputy was requested to furnish my office a list of senior noncommissioned officers who were regarded as responsible and available for court-martial duty.”- (Emphasis supplied.) Further, in view of the fact that Private Crawford was a Negro, “we asked that at least one enlisted man be colored.” These names were submitted, a written list was prepared, and the matter turned over to the chief of staff. Prospective colored members were marked with an asterisk, and “I indicated in some way, possibly a double asterisk, the court members who I believed were possibly better qualified by intelligence or temperament for the responsible assignment of being general court members.”
In delivering the list to the chief of staff, the staff judge advocate “explained . . . that while I thought it desirable that at least one of the enlisted members be colored in view of the fact that Crawford was accused of a knife assault on a white soldier, one of the officer members was colored, and that a colored enlisted member was therefore not too important. ... In short, I furnished a list of names and asked the Commanding General to select therefrom or to ask for other names, keeping in mind that at such short notice we might not be able to obtain a colored enlisted member.”
The chief of staff delivered the list to the convening authority, returned and informed the staff judge advocate “the Commanding General wanted one colored member (whose name as I recall was Sergeant Rufus Jones) appointed to the court. This colored enlisted man’s name was not on the list submitted by me to the General.” In addition, the convening authority had marked the names of those senior non-commissioned officers on the list whom he desired to serve as the balance of the enlisted membership.
When Sergeant Jones was contacted, he vehemently protested that he was white, and the staff judge advocate obtained the name of another available colored, senior noncommissioned officer. This individual was appointed by the convening authority to serve at the trial.
The staff judge advocate pointed out that, in “seeking names of prospective court members I have always sought individuals with integrity and common sense.” He thought “seniority of rank might give some indication of civic responsibility and intelligence and that amongst this group of nominees the Commanding General, hopefully, might find some nuggets of pure gold for court-martial membership purposes.”
The deputy staff judge advocate submitted an affidavit generally corroborative of that of the staff judge advocate, adding that he had sought, on the latter’s behalf, from the adjutant general, a list of “nine or ten . . . mature, responsible and experienced senior non-commissioner officers from units other than the accused.” (Emphasis supplied.) He had specifically requested “the name of a colored noncommissioned officer be included if this was possible.” The need for nine or ten names was required in order to give the Commanding General a broader basis for selecting the needed four enlisted members.
From January 1961, until accused’s trial in June 1963, no other defendant had requested enlisted personnel to be appointed to his court-martial.
*51Other affidavits filed on behalf of the accused support the foregoing declarations and establish beyond cavil that the standard for appointment of enlisted personnel to Crawford’s court was that of “mature, responsible and experienced senior noncommissioned officers” (emphasis supplied) with the direction that a Negro noncommissioned officer be included.
Those enlisted personnel who were actually appointed to hear accused’s case and, in fact, did so, were Sergeant Major (E-9) Graeff, Sergeant Major (E-9) Giggey, Sergeant Major (E-9) Frejosky, and Master Sergeant (E-7) McNair, the last named being the Negro member located and recommended for selection to the Commanding General by the staff judge advocate. Thus, three out of the four members who participated in the trial occupied the highest enlisted grade in the Army and the fourth, while two steps below them, was also in the class popularly referred to as “first three graders.”
In addition to the foregoing matters, the defense submitted to this Court certain statistical charts reflecting Army practice in appointing enlisted court members during the period 1959-1962. These in general indicate that, in 5,582 trials, enlisted accused sought appointment of enlisted court members on only 154 occasions. In 1959, out of 221 enlisted members thus selected, 204, or 92.3%, held the three most senior grades in the Army — -E-7, E-8, or E-9. Yet, only three cases involved accused of the rank of E-7, and no E-8 or E-9 personnel were subjected to trial.
In 1960, 206 enlisted members were appointed to hear 51 cases. There were 186 such persons in the three senior grades, amounting to 90% of those selected. Again, only three cases were tried involving defendants in the grade of E-7, and no first sergeants or sergeant majors were brought to trial.
In 1961, 179 enlisted members participated in 46 cases. One hundred and sixty were “first three graders,” constituting 89.3% of those selected. During this year, only one defendant ranked as high as an E-7.
In 1962, the last year covered by the statistical analysis, 35 trials involved appointment of 136 enlisted members. One hundred eighteen, or 86.7%, were in the grades of E-7, E-8, or E-9, although only two defendants were so ranked. Thus, for the whole period of 1959-1962, an average of 89.4% of all enlisted court members have been selected from the three most senior noncommissioned officer grades.
The foregoing constitute the factors which bear upon the decision which this Court is required to make concerning whether, in the words of the assignment:
“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.”
II
At the outset, two matters which tend to obfuscate the issue before us should be clarified and put to one side. First, the Government stringently urges that the affidavits provided by the appellate defense counsel are not properly before us and that the entire matter was waived at the trial level by failure to enter any objection to the composition of the court-martial or to use the provided challenging process. The principal opinion mentions the matter in passing but eliminates it from consideration . on the basis. that Crawford’s dilemma should be resolved in order to settle the question and eliminate uncertainty. In my opinion, the issue strikes at the heart of the process by which court members are selected, involves a violation of the Congressional mandate concerning the appointment of enlisted personnel, and is, therefore, jurisdictional in nature.
In McClaughry v Deming, 186 US 49, 46 L ed 1049, 22 S Ct 786 (1902), the Supreme Court declared, at page 62:
"... 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 *52it is without jurisdiction.” [Emphasis supplied.]
And in Runkle v United States, 122 US 543, 30 L ed 1167, 7 S Ct 1141 (1887), the same body declared, at page 555:
“A court-martial organized under the laws of the United States is a court of special and limited jurisdiction. It is called into existence for a special purpose and to perform a particular duty. When the object of its creation has been accomplished it is dissolved. ... To give effect to its 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.”
These decisions, which stand unim-peached today, make it clear that exacting compliance with the commands of the Code regarding the constitution of courts-martial is required in order to breath judicial life into the proceedings. United States v Robinson, 13 USCMA 674, 33 CMR 206; United States v Vanderpool, 4 USCMA 561, 16 CMR 135. Whether there has been such compliance is the very question before us. And that jurisdictional matters may be raised and disposition made of them on the basis of affidavits is clearly settled both in this Court and before the boards of review. United States v Ferguson, 5 USCMA 68, 17 CMR 68; United States v Roberts, 7 USCMA 322, 22 CMR 112; United States v Dickenson, 6 USCMA 438, 20 CMR 154; Rule IX F Uniform Rules of Procedure for Proceedings In and Before Boards of Review. The eases upon which the United States relies to support the contrary conclusion deal with the ordinary incidents of the trial and matters in mitigation of punishment. See United States v Fagnan, 12 USCMA 192, 30 CMR 192, and United States v Roberts, supra. Jurisdictional questions may be raised at any time, and the argument of waiver has no place in this controversy.
Secondly, the issue whether a member of the armed forces is entitled to a trial by jury is not involved here. That has long since been settled by the Supreme Court, and it cannot be gainsaid that neither indictment by grand jury nor trial by petit jury’ is constitutionally required in the military forces. 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; United States v Jacoby, 11 USCMA 428, 29 CMR 244. It is for the Congress to provide the rules for the government of the land and naval forces, subject, generally, to the necessity for providing an opportunity for a fair hearing. Whelchel v McDonald, 340 US 122, 95 L ed 141, 71 S Ct 146 (1950). I hasten to add that the Congressional power is circumscribed, as the Chief Judge notes, by those constitutional guarantees which are neither expressly nor impliedly made inapplicable to military trials. United States v Jacoby, supra. And the “military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights.” Burns v Wilson, 346 US 137, 142, 97 L ed 1508, 1515, 73 S Ct 1045, 1048 (1953). But the issue of trial by jury of one’s peers, except insofar as Congress has provided therefor in the Uniform Code, is not one with which we are now concerned. Rather, it is a question of what Congress has determined with regard to enlisted composition of courts-martial that needs must be found.
Ill
Code, supra, Article 25, 10 USC § 825, provides pertinently:
“(c) (1) Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the convening of the court, the accused personally has requested in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial *53the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members 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.
“(d) (1) When it can he avoided, no member of an armed force may he 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 detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” [Emphasis supplied.]
As long ago as United States v Dickenson, supra, we pointed out, at page 449:
“A statute must be interpreted in accordance with the declared intention of the legislature. United States v Cooper Corp., 312 US 600, 61 S Ct 742, 85 L ed 1071; Hassett v Welch, 303 US 303, 58 S Ct 559, 82 L ed 858. If the words used in the statute convey a clear and definite meaning, a court has no right to look for or to impose a different meaning. It is clearly and forcefully set out in 50 Am Jur, Statutes, § 225, page 207, that ‘a plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.’ ”
See also United States v Hicks, 6 USCMA 621, 20 CMR 337, and United States v Davis, 12 USCMA 576, 31 CMR 162.
That is the principle which is applicable to our consideration of Code, supra, Article 25. We do not sit here, as did the Committee on Armed Services, to determine what rules should govern the convening authority in selecting court members. We take the rules which the Committee saw fit to submit to the House and Senate after long and careful consideration; which those bodies saw fit to pass and submit to the President; and which that Chief Executive, acting pursuant to his constitutional authority, determined to approve. To act otherwise is simply to substitute our judgment for that of those to whom the legislative authority is properly confided and to set military justice upon a course rejected by the representatives of the people. And when we view it properly, the statute inescapably makes every enlisted member of the armed forces, who is not a member of the same unit as the accused, eligible for appointment on courts-martial.
First, Code, supra, Article 25, expressly declares, “Any enlisted member of an armed force on active duty who if not a member of the same unit as the accused is eligible to serve . . . for the trial of any enlisted member of an armed force.” This declaration can scarcely be found to contain any ambiguities or to require construction which would merely serve to introduce doubts not theretofore present. United States v Hicks, supra. Secondly, having made this general declaration of eligibility, the Article in question goes on to state certain specific substandards for use in selecting court members from this class of all enlisted men. It continues in effect and codifies the long policy of appointing no members to the court junior to the accused in rank or grade if such can be avoided. Code, supra, Article 25(d)(1). It confers upon the convening authority the sole discretion to select from the class first delineated in the enactment those who are, “in his opinion . . . best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” The only other condition contained in the statute, which is not relevant to the problem before us, is the prohibition *54against appointing any person as a court member who was the accuser, a witness for the prosecution, or who had acted as investigating officer or counsel in the same case. Code, supra, Article 25(d)(2).
The statute, therefore, sets up a class of enlisted members who, after accused has filed his request for their appointment in writing, are all eligible for consideration by the convening authority. Not a single condition is inserted with regard to their rank or position within the military community, except those very general and personal factors which are to be considered by the convening authority in the exercise of his discretion. Indeed, the authors of the Uniform Code expressly eliminated in Code, supra, Article 25, the proviso contained in its predecessor legislation, which prohibited members with less than two years’ service from being appointed to hear general and special court-martial cases. See Public Law 759, 80th Congress, 62 Stat 604, 628. And the reasons which led to the creation of this broad class of eligibles were those placed before the House Armed Services Committee as the views of enlisted men in general:
“. . . They have two particular reasons for wanting it.
“One is that they feel that officers, in the main, have never served in the enlisted grades and do not understand the problems of enlisted people. While they don’t expect any particular sympathy from the court because of that, a court which might include enlisted persons, nevertheless they feel that they would have more understanding.
“The second reason is this: They say it is much more democratic. They just like the idea that they have a choice. They say ‘We would have it in civilian life and we like the idea that we can have it here.’ ” [Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1142.]
Throughout the Hearings, fears were expressed that an attempt would be made to limit the accused’s right by appointing only senior noncommissioned officers to courts-martial. Committee counsel brought to the members’ attention the fact that “some of these ‘crusty’ noncoms might throw the book at these boys.” House Hearings, supra, page 1140. And, as the Chief Judge notes, Mr. Spiegelberg, appearing on behalf of the American Bar Association, thought the right would prove valueless to enlisted accused as “most of the enlisted men who serve on courts will either be master sergeants or tech sergeants with from 6 years’ service up and . . . they will be more severe in their judgment of the man on trial than would officers.” House Hearings, supra, page 724. The comments of Mr. Philbin, a member of the House Committee, indicate perplexity as to “[w]hy should that follow, necessarily” and why the convening authority could not get “a fair representation of all enlisted men.” House Hearings, supra, page 724. Perhaps Senator Wayne Morse most succinctly stated the legislative position when he declared:
“Why can we not have findings of fact by a cross-section of your personnel, whether the man is an enlisted man or a general?
“We have bankers and ditchdiggers on our juries, and I do not know why we cannot have generals and privates on our court-martial when a determination of facts in the application of the law — [is in question].” [Hearings before Senate Armed Services Committee on S. 857 and H. R. 4080, 81st Congress, 1st Session, page 93.]
All these considerations make clear beyond cavil the Congressional intent that all enlisted personnel be eligible for consideration by the convening authority in selecting enlisted members for courts-martial, and, as noted above, the express, unambiguous words of the statute Command it. Yet, turning to the evidence before us, we find that each and every affidavit presented declares that the convening authority limited his choice of members to the very class which Congress hoped would not become the sole source of eligibles, i. e., “senior noncommissioned officers.” Thus, the staff judge advocate listed as recommended court members only those *55"senior noncommissioned officers who were regarded as responsible and available for court-martial duty.” The affidavit which he filed indicates he considered seniority of rank the governing “indication of civic responsibility and intelligence.” His deputy deposed that the list submitted to the convening authority was limited to “nine or ten . . . mature, responsible and experienced senior noncommissioned officers.” And those senior noncommissioned officers considered most qualified for appointment were duly marked with double asterisks by the staff judge advocate. Finally, from this list and after an apparently extended hunt for another senior noncommissioned officer of the colored race, the enlisted members actually appointed consisted of three sergeants-major (E-9) and one master sergeant (E-7). Truly, this was precisely the sort of court which Mr. Spiegelberg, in testifying before the Armed Services Committee, feared would, in practice, result, and the sort of members to which the Committee Counsel referred as “some of these ‘crusty’ noncoms.” House Hearings, supra, page 1140. Upon the face, therefore, of the record before us, the very letter of Code, supra, Article 25, was violated, for — contrary to its terms— the convening authority looked only to a small group of senior noncommis-sioned officers in selecting enlisted court members rather than making a choice from “such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” To hold to the contrary simply writes into the statute, as a matter of law, that those who possess high enlisted rank, not only meet all these qualifications but are the only ones who do so. And this conclusion is reached despite the existence in the Army of a large reservoir of highly educated and trained enlisted specialists who hold comparable pay grades but are not considered noncom-missioned officers as their tasks envision the use of technical skill rather than command.
That such practice is not limited to the jurisdiction with which we now deal is graphically illustrated by the statistics furnished on this appeal by counsel regarding the appointment in general of senior grade enlisted personnel to courts-martial. The average of 89.4% throughout the Army eloquently bespeaks the reason why the right to have enlisted personnel on one’s court-martial has become a relatively dead letter throughout the armed services.
It is in considering the effect of such deliberate exclusion of other ranks and junior noncommissioned officers from consideration for court membership that well considered precedents in the Federal system become relevant. Thus, the Supreme Court has consistently struck down systematic, arbitrary, and discriminatory exclusion of classes from jury service, when it appears that such classes meet the qualifications for service under the statutes involved. Of particular interest to those who argue that private soldiers — the “hoi polloi”— are not qualified to judge their fellows is the following language dealing with a similar contention regarding Negroes:
. . The general attitude of the jury commissioner is shown by the following extract from his testimony: T do not know of any negro in Morgan County over twenty-one and under sixty-five who is generally reputed to be honest and intelligent and who is esteemed in the community for his integrity, good character and sound judgment, who is not an habitual drunkard, who isn’t afflicted with a permanent disease or physical weakness which would render him unfit to discharge the duties of a juror, and who can read English, and who has never been convicted of a crime involving moral turpitude.’ In the light of the testimony given by the defendant’s witnesses, we find it impossible to accept such a sweeping characterization of the lack of qualifications of negroes in Morgan County. It is so sweeping, and so contrary to the evidence as to the many qualified negroes, that it destroys the intended effect of the commissioner’s testimony.” [Norris v Alabama, 294 US 587, 598, 79 L ed 1074, 1081, 55 S Ct 579, 587 (1935).]
*56And, in speaking of the deliberate exclusion of daily wage earners from a Federal jury, and, finding no base for such action under applicable statutes, Mr. Justice Murphy stated, for the Supreme Court:
. . Wage earners, including those who are paid by the day, constitute a very substantial portion of the community, a portion that cannot be intentionally and systematically excluded in whole or in part without doing violence to the democratic nature of the jury system. Were we to sanction an exclusion of this nature we would encourage whatever desires those responsible for the selection of jury panels may have to discriminate against persons of low economic and social status. We would breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged. That we refuse to do.
“. . . Thus a blanket exclusion of all daily wage earners, however well-intentioned and however justified by prior actions of trial judges, must be counted among those tendencies which undermine and weaken the institution of jury trial. ‘That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties/ Glasser v United States, supra (315 US 86, 86 L ed 707, 62 S Ct 457).
“. . . The evil lies in the admitted wholesale exclusion of a large class of wage earners in disregard of the high standards of jury selection. To reassert those standards, to guard against the subtle undermining of the jury system, requires a new trial by a jury drawn from a panel properly and fairly chosen.” [Thiel v Southern P. Co., 328 US 217, 90 L ed 1181, 66 S Ct 984, at page 223 (1946).]
So also in this case, as has been demonstrated above, there is no basis in law for the exclusion of those persons who are not senior noncommis-sioned officers and who certainly form “a very substantial portion of the [military] community.” Thiel v Southern P. Co., supra. Both the admitted practice in this case and statistics regarding such appointments to courts-martial throughout the Army should indicate to us our duty to revivify the Article in question, to prevent the very practice which its proponents in Congress feared, and, as did the Supreme Court in the case of Federal juries, deny the breath of life to those who would make the court-martial the instrument of the higher ranks and eliminate the thoughts of those who sought to infuse in it some of the spirit of a civilian jury trial. House Hearings, supra, at page 1142. I would conclude, therefore, that this accused’s court-martial consisted in part of improperly chosen enlisted members, was not duly constituted, and would order another trial.
IV
It does not appear that the Chief Judge disagrees with the legal conclusion which I reach, for he, too, finds nothing in the “Uniform Code expressly limits membership on a court-martial to persons of a particular rank” and that Code, supra, Article 25, “implies all ranks and grades are eligible for appointment.” He finds, nevertheless, that the evidence does not establish the practice of discriminatory exclusion in this case. First, he treats each general court-martial jurisdiction within the Army as if it were a separate entity unresponsible for appointments occurring in other commands and, thus, believes the statistics filed by appellate defense counsel are of little moment. But, assuming such an approach to be correct, the value of the statistics lies in the background which it furnishes for consideration of the action of the convening authority and staff judge advocate in this case. It demonstrates beyond peradventure a widespread refusal on the part of the military to consider other than first three grade noncommissioned officers for appointment on courts-martial and serves to illuminate the affidavits filed in this *57case concerning selection from a list expressly limited to senior noncommis-sioned officers. In short, as was stated in Hernandez v Texas, 347 US 475, 98 L ed 866, 74 S Ct 667 (1954), at page 479:
“The petitioner’s initial burden in substantiating his charge of group discrimination was to prove that persons of Mexican descent constitute a separate class in Jackson County, distinct from ‘whites.’ One method by which this may be demonstrated is by showing the attitude of the community.”
So also may the attitude of the military community toward the elimination of lower enlisted grades in the process of selecting and appointing enlisted court members be shown.
Secondly, conceding that the convening authority was limited to “senior noncommissioned officers” during the selection process, the Chief Judge believes that such a limitation is valid on the basis “that the senior ranks will more readily provide a large number of persons possessing the varied qualities enumerated in the Uniform Code.” In so concluding, he relies on a number of well-settled Federal decisions which permit various criteria and sources to be used in the selection of veniremen. United States v Flynn, 106 F Supp 966, 972 (SD NY) (1952); Walker v United States, 93 F2d 383 (CA 8th Cir) (1937); Gorin v United States, 313 F2d 641 (CA 1st Cir) (1963), cert den 374 US 829, 10 L ed 2d 1052, 83 S Ct 1870 (1963). But the important point which he overlooks is that none of these cases, in setting up various means of obtaining qualified jurors, involved a departure from statutory norms or a narrowing of those eligible under the statute by class. Cf. Thiel v Southern P. Co., supra. Thus, in Gorin, supra, Chief Judge Woodbury, speaking for the Circuit Court, stated, at page 644:
“This does not mean blanket endorsement of jury selection directly or indirectly from voting lists. It means that voting lists may be used as the basis for jury selection unless it appears that in the community there is systematic ynd intentional exclusion from those lists of a particular economic, social, religious, racial, geographical, or political group. When such a showing is made some other basis of selection must be used. Here, however, the appellants have not shown that in Boston any enumerated class is systematically and intentionally discriminated against in registering to vote. Indeed the evidence is quite to the contrary.” [Emphasis supplied.]
In the instant case, however, the affidavits make quite clear that the convening authority was limited to the class or group of senior noncommis-sioned officers, thereby excluding from consideration all those not possessing one of those ranks. The statistics cited show that in the Army there is a “systematic and intentional exclusion” from such court lists of the other ranks. Gorin, supra, at page 644. Hence, rather than the use of the ordinary screening process, we are confronted with the intentional narrowing of the class of eligibles under the Article in question which, in respect to a similar process under Federal jury enactments, the Supreme Court so vigorously condemned in Thiel v Southern P. Co., supra. In short, we have that very departure from the statute which its drafters feared and predicted would occur. Taken all in all, the Chief Judge’s reasoning to the contrary notwithstanding, if such can be done through the device of screening potential members, then the wording of the Article making “[a]ny enlisted member” eligible to participate in the military judicial process is indeed meaningless.
For these reasons, I record my disagreement with his conclusion.
V
The final question before us deals simply with whether a convening authority may ever select a member of a court-martial of the same race as the accused solely on the grounds of that race, i.e., legitimately appoint a Negro member of a court solely on the grounds that the defendant is colored. In my opinion, he clearly cannot.
Thq authorities are, of course, legion *58that systematic exclusion of Negroes or other classes of persons from service on juries is constitutionally impermissible. Norris v Alabama, supra; Hernandez v Texas, supra; Eubanks v Louisiana, 356 US 584, 2 L ed 2d 991, 78 S Ct 970 (1958) ; Arnold v North Carolina, 376 US 773, 12 L ed 2d 77, 84 S Ct 1032 (1964). But it is equally discriminatory deliberately to include court members on the basis that they are of the same race as the defendant.
In Collins v Walker, 329 F2d 100 (CA 5th Cir) (1964), it was established that six Negroes were intentionally included in a list of twenty persons from whom twelve grand jurors were to be drawn. Five were actually selected to serve on the grand jui’y which indicted the accused, whose case was the only one scheduled to be heard by such body. The Circuit Court of Appeals concluded that the indictment was void and granted a writ of habeas corpus to the defendant. In so acting, it stated, at page 105:
“The only list of importance to the decision of this case is the list of twenty from which the foreman was selected and the other eleven grand jurors drawn. Six Negroes were deliberately included in this list of twenty because of their race. When to this circumstance is added the additional facts then known to the jury commissioners that the grand jury to be chosen from that list of twenty was to consider whether to return an indictment against Collins, and that no other case was scheduled to be considered by that grand jury, the conclusion becomes inescapable that in the organization of the grand jury which indicted Collins there was discrimination against him because of his race or color.”
While, because of the nature of our national development, most cases have involved exclusion of Negroes from juries, the whole point of the discussion in this area is that race is an impermissible criterion for selection of jurors. In the administration of justice, we are to all be considered, not as Negroes, Whites, Chinese, Jews, or Christians, but as Americans. That is the teaching of Collins v Walker, supra, and, contrary to the view of my brothers, I believe it is well-founded. Mr. Justice Harlan’s dictum that the Constitution is color-blind is worth repeating. Plessy v Ferguson, supra. An accused cannot demand that members of his own race be appointed to his court-martial, but he is “entitled to demand under the Constitution . . . that in organizing the . . . jury there shall be no discrimination against him because of his race or color.” Collins v Walker, supra, at page 105; Martin v Texas, 200 US 316, 50 L ed 497, 26 S Ct 338 (1906).
In Avery v Georgia, 345 US 559, 562, 97 L ed 1244, 73 S Ct 891 (1953), the Supreme Court condemned the use of white and yellow tickets to indicate the race of prospective jurors, holding that such constituted prima facie evidence of discrimination. Mr. Justice Frankfurter, concurring, noted that “opportunity for working of a discriminatory system exists whenever the mechanism for jury selection has a component part, . . . that differentiates between white and colored.” Id., supra, at page 564. How much more does that discrimination exist when, as here, the convening authority is furnished with a list, the Negro members of which are marked with an asterisk! To establish conclusively the use of such an impermissible standard, it appears that, rejecting the colored member suggested by the staff judge advocate, the general determined to appoint another sergeant who turned out to be white. Finally, the staff judge advocate himself sought out Master Sergeant McNair and secured his appointment on the court-martial solely on the basis of his race and that of the defendant. Thus, in defiance of the constitutional prohibitions, as laid down in Collins v Walker and Avery v Georgia, both supra, race was undeniably used as the standard by which at least one of the court members was selected and, for this reason also, I would reverse the decision of the board of review and order a new trial.
VI
In sum, then, I am of the opinion *59that this record conclusively establishes the convening authority imper-missibly limited himself to senior noncommissioned officers in choosing enlisted court members, in violation of Code, supra, Article 25. Further, the. detailed and arduous quest for a Negro member of the court, selected solely on the basis of his race, establishes beyond cavil that the ugly fact of race was considered, at least in this jurisdiction, to be the standard by which military jurors should be selected in the case of Negro defendants. I would not hesitate to strike this practice down and remind commanders everywhere that neither race, nor color, nor creed, enter into the administration of any American judicial system. Considering as I do that these errors go to the competency of the court-martial which heard accused’s case, I would order another trial before a properly selected court. Thiel v Southern P. Co., supra.
I, therefore, dissent from the contrary view of my brothers.