(dissenting):
I dissent.
*571I had thought it well settled in this Court that the doctrine of waiver would not be applied in those special courts-martial in which the accused was represented by a layman, as opposed to having as his advocate a qualified attorney, who would recognize the importance attached to the requirement of the Uniform Code of Military Justice that charges be signed by a person subject to the Code, under oath that he “has personal knowledge of or has investigated, the matters set forth therein; and , . . that they are true in fact to the best of his knowledge and belief.” Code, supra, Article 30, 10 USC § 830. My brothers, however, take a contrary view, and, treating the absence of any oath or' signature to the charges in question as a purely formal matter, impute to the appointed defense counsel — a Marine lieutenant — a legal acumen which years of experience have shown simply does not exist on the part of line officers untrained in the law. I cannot agree either that this is merely a formal matter or that the doctrine of waiver ought to be invoked when the accused is not represented by qualified counsel. If such is to be the case in special courts-martial, then there is justification indeed for the observation that “it may be repugnant to minimal requirements of due process, even in the military service, for the juridically blind to lead the blind.” In re Stapley, 246 F Supp 316 (DC Utah), decided October 1, 1965.
It is not contested in this case that all the charges and specifications except the original count are both unsigned and unsworn by any accuser. They consist of no more than the allegation of several “specifications” on a piece of paper stapled inside the original charge sheet, and the dates on which the offenses were alleged to have been committed are later than that of the jurat thereto. The staff legal officer noted such to be the case in his post-trial review and, as the majority opinion states, the Government concedes the error at this level. In short, as my brothers and I have stated, there is presented on the face of the record a clear and brazen violation of the positive command of the Congress in Code, supra, Article 30.
In my view, departures from statutory norms may not be easily brushed aside, particularly on the basis that the violations were not recognized below by one lacking any legal training. Speaking of the applicability of a harmless error statute in the Federal courts, the Supreme Court noted these enactments were designed to eliminate the criticism that appellate courts “ ‘tower above the trial of criminal cases as impregnable citadels of technicality,’” but concluded such legislation was not designed to sanction departures from legislative commands. Kotteakos v United States, 328 US 750, 90 L ed 1557, 66 S Ct 1239 (1946). See also my separate opinion in United States v Cruz, 10 USCMA 458, 28 CMR 24, at page 463. And it is clear that lack of any verification or signature upon a charging instrument is no “technicality” in the eyes of our highest Federal tribunal.
Commencing with an era in which many of our Founding Fathers were yet alive, the requirement for an oath in connection with criminal charges has been consistently maintained. Ex parte Burford, 3 Cranch 448 (U.S. 1806); Rice v Ames, 180 US 371, 45 L ed 577, 21 S Ct 406 (1901). And where an indictment was altered after its return, the Supreme Court declared such to be void, as not presented upon the oaths of the grand jurors, and stated its amendment deprived the trial court of the power to proceed further. Thus, it said:
“. . . It is of no avail, under such circumstances, to say that the court still has jurisdiction of the person and of the crime; for, though it has possession of the person, and would have jurisdiction of the crime, if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment. If there is nothing before the court which the prisoner, in the language of the Constitution, *572can be “held to answer,’ he is then entitled to be discharged so far as the offense originally presented to the court by the indictment is concerned. The power of the court to proceed to try the prisoner is as much arrested as if the indictment had been dismissed or a nolle prose-qui had been entered. There was nothing before the court on which it could hear evidence or pronounce sentence.” [Ex parte Bain, 121 US 1, 13, 30 L ed 849, 7 S Ct 781 (1887).]
In Albrecht v United States, 273 US 1, 71 L ed 505, 47 S Ct 250 (1927), the same tribunal again noted, at page 8:
"... A person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court.”
And in United States v Morgan, 222 US 274, 56 L ed 198, 32 S Ct 81 (1911), it declared:
“. . . [A]s to this and every other offense, the 4th Amendment furnishes the citizen the nearest practicable safeguard against malicious accusations. He cannot be tried on an information unless it is supported by the oath of someone having knowledge of facts showing the existence of probable cause. Nor can an indictment be found until after an examination of witnesses, under oath, by grand jurors, —the chosen instruments of the law to protect the citizen against unfounded prosecutions, whether they be instituted by the government or prompted by private malice.” [Morgan, supra, at page 282.]
See also United States v Glasser, 116 F2d 690, 695 (CA 7th Cir) (1940), and United States v Williams, 203 F2d 572 (CA 5th Cir) (1953).
Of course, prosecution by indictment is not required in military courts, as such are expressly excepted from the terms of the Fifth Amendment. Reid v Covert, 354 US 1, 1 L ed 2d 1148, 77 S Ct 1222 (1957). But I suggest Congress sought similarly to protect members of the armed services from baseless accusations by providing them with the shield of oath and signature as to every criminal charge leveled against them. Code, supra, Article 30. When referred to trial, we have compared the charges to an information or indictment. United States v Johnson, 12 USCMA 710, 31 CMR 296; United States v Rodgers, 8 USCMA 226, 24 CMR 36. And even the information, when utilized as a basis for prosecutions in the Federal courts, is said to be guaranteed by the oath of the United States District Attorney that he will well and faithfully fulfill the duties of his office. Albrecht v United States, supra. Hence, it will be seen we deal here with no merely formal omission but with the absence of those guaranties by which Congress sought to protect the accused and which have the effect of turning a mere piece of paper into a criminal pleading which he is required to answer before a court of the United States.
The absence of these safeguards, as prescribed by Congress, may not constitute jurisdictional error, see Frisbie v United States, 157 US 160, 39 L ed 657, 15 S Ct 586 (1895), but it, in my opinion, makes out such a substantial departure from the requirements laid down in the Code that cognizance thereof should be taken at this level, as a matter of course, when the accused is defended by an unqualified officer and has not had the benefit of the advice and guidance of an attorney at the trial level.
It is this aspect of my brothers’ view with which I most strongly disagree. In United States v Moore, 4 USCMA 675, 16 CMR 249, we, when faced with an error affecting the qualifications of a court member, declared, “because this was a special court-martial trial and accused was represented by a non-lawyer, we do not consider the doctrine of waiver applicable.” Id., at page 677. And in United States v Pinkston, 6 USCMA 700, 21 CMR 22, at page 706, we again said:
“. . . We have earlier and repeatedly recognized the fact that, for the most part, defense counsel appearing before special courts-martial are not qualified attorneys *573any more than is the president— certainly they need not be under the law. We have always been unwilling to charge against accused persons waivers based on the conduct of counsel of this description.”
See also United States v Beer, 6 USCMA 180, 19 CMR 306; United States v Kelley, 7 USCMA 584, 23 CMR 48; United States v Silva, 8 USCMA 105, 23 CMR 329; United States v Williams, 8 USCMA 443, 24 CMR 253; United States v Anderson, 8 USCMA 603, 25 CMR 107; United States v Hill, 9 USCMA 10, 25 CMR 272; and United States v Johnson, 14 USCMA 75, 33 CMR 287.
The foregoing does not purport to be a complete listing of the cases in which we have consistently refused to apply the doctrine of waiver in light of the fact that the accused was not represented by counsel with legal training. It is sufficient, however, to indicate our long recognition of the fact such advocates are “obviously not trained to either recognize the error involved or intelligently waive its harmful effects.” United States v Anderson, supra, at page 606. I yet maintain that view, based as it is on the review of thousands of special court-martial records over the past years, and add my belief that insistence upon full review of such trials, despite the lack of objection, is the only course open to us to insure fairness in the proceedings below. Once the doctrine of waiver is invoked in face of the fact that the accused was represented before the court-martial by a layman, the door is fully opened to all the abuses in the administration of military justice which existed in the past. In short, lacking such réview, justice will fail because of the shortcomings of a nonlawyer and not because of any course deliberately or even intelligently followed by the accused below. Cf. United States v Kelley, supra.
Turning to the rationale of my brothers, it is apparent that they, depending on three past decisions, invoke only the doctrine of waiver. Of those cases, however, only one is a special court-martial. The others, United States v May, 1 USCMA 174, 2 CMR 80, and United States v Smith, 8 USCMA 178, 23 CMR 402, were general courts-martial, in which the accused was represented by competent counsel. United States v Marcy, 1 USCMA 176, 2 CMR 82, alone involved a special court-martial, and it does not appear in the opinion whether the accused was represented by an attorney. If so, the difference between the requirement of an objection in that case and the myriad of later decisions to the contrary is self-explanatory. If not, then the opinion can only be explained by its promulgation during the early days of the Code, when the lack of qualified representation by non-lawyers had not become plainly apparent. However, such has since been clearly demonstrated by our continuing refusal to charge waiver against an accused so represented. I suggest that, in light of these cases, its invocation here is a slender basis for excusing the substantial departure on this record from the mandate of Congress. I, for one, prefer to follow our solidly established precedents to the contrary, and, in light of the fact that accused was not defended by an attorney, notice the plain error involved. Accordingly, I dissent.
I would reverse the decision of the board of review and remand the case for reassessment of sentence on the basis of the only signed and sworn charge preferred against this accused.