(dissenting):
I dissent.
In United States v Nix, 15 USCMA 578, 36 CMR 76, this Court held it prejudicially erroneous for the law officer to refuse to direct compliance with a pretrial order for a psychiatric examination, which medical officers had refused to conduct. In so doing, the Court unanimously stated, at page 581:
“. . . Since pretrial motions are properly addressed to the convening authority, his action in approving the defense request was a judicial order which must he complied with and completed before proceeding with the trial. Sullivan v United States, 205 F Supp 545 (SD NY) (1962).” [Emphasis supplied.]
It also declared, at page 582:
“When the matter was before the law officer, he erred in not directing compliance with the then existing judicial order. He was without authority to proceed pending compliance therewith. Sullivan v United States, supra.” [Emphasis supplied.]
In my opinion, our decision in Nix, supra, in view of the favored position accorded by the military to inquiries into the responsibility and competency of accused persons, leaves no room for the invocation of the doctrine of waiver, and I would not apply it here.
As the accused had been evaluated only by medical officers, the pretrial *240investigating officer was not satisfied, in light of the nature of the charges, with the information available to him concerning Dobson’s mental state. Both he and the defense counsel sought psychiatric evaluation of the accused, and such was ordered by the officer exercising special court-martial jurisdiction, who had appointed the investigating officer. While the investigating officer’s report was at the same time forwarded to the officer exercising general court-martial jurisdiction, notation was made that a complete psychiatric examination had been requested and would be forwarded separately.
The evaluation of the accused was again made by local medical authorities. In this connection, not only does the post-trial review indicate such to have been the case, but the record of trial specifically reflects that accused was not examined by a psychiatrist. Thus, a Doctor Fuller testified an appointment with a psychiatrist had been sought on behalf of the accused, but such was not obtained. Dr. Fuller expressed dissatisfaction with this state of affairs but noted, “ [apparently they were swamped or something.”
As was extensively discussed and pointed out in United States v Nix, supra, pretrial inquiries into the sanity of an accused have long received preferred treatment in the armed services. In that case, we likened pretrial directions for mental examinations by a convening authority to those directed by Federal judges under the provisions of 18 USC, section 4244. They are not the less judicial in nature when ordered by the officer exercising special court-martial jurisdiction over the accused at the request of defense counsel and the pretrial investigating officer. That the latter occupies a judicial capacity and is to be likened unto a committing magistrate is clear beyond cavil. See United States v Cunningham, 12 USCMA 402, 30 CMR 402. It is likewise certain that the commanding officer who appoints him, reviews the report of investigation, and either disposes of the charges locally, or forwards them with a recommendation for trial by general court-martial is likewise acting judicially. Cf. United States v Hawthorne, 7 USCMA 293, 22 CMR 83; United States v Doherty, 5 USCMA 287, 17 CMR 287.
Such being the ease, it was the duty of the medical officers to comply with the commander’s order and cause the accused to be evaluated by trained psychiatrists. Absent such compliance, we have outstanding and undetermined the question of accused’s responsibility and competency, and an absolute barrier to proceeding against him, so long as the ordered examination has not been conducted. United States v Nix, supra.
Thus, in Krupnick v United States, 264 F2d 213 (CA8th Cir) (1959), it was pointed out, once a judicial determination for the necessity of an examination was made, it was necessary that such be carried out by a psychiatrist, and the failure to do so entitled the accused to relief. The decision to have accused examined was one for the commanding officer to make and not the medical doctors to whom accused was referred. United States v Sermon, 228 F Supp 972 (WD Mo) (1964).
Much is made here of the failure to raise this issue at trial and seek a ruling by the law officer, as was done in the Nix case, supra. But, as we noted in that case, the law officer could not reweigh the facts and determine whether the examination was proper under all the circumstances. We said, at page 582, “He was without authority to proceed pending compliance therewith.” Thus, all he could have done here was to suspend the trial and direct compliance with the commanding officer’s order. Krupnick, supra. But, as we have held, the accused was already entitled to that on the basis of the commander’s judicial direction alone. Thus, the law officer’s action on the matter could have added nothing to the case, and the failure to bring the matter to his attention should not control here.
Moreover, there is no substance to the contention that, by making no mention of the matter, defense counsel is armed with reversible error regardless of how the actual trial is conducted. Orders of this nature are as much for *241the benefit of the United States as for the accused. Its facilities are used, and the information thereby obtained is furnished it as well as the accused. Its representatives were well aware that the order had not been carried out and that the accused had not received a psychiatric evaluation. It, therefore, as well as the accused, could have brought the matter to the law officer’s attention and insured the barrier to trial was removed. As it, in fact, controls access to Government medical facilities and the availability of the experts, there is even more reason to charge it with responsibility for compliance with these orders than the accused'; who, standing alone, cannot obtain any services of this nature.
On the whole, then, I would apply our straightforward holding in United States v Nix, supra, to this case. In my opinion, when it declares a trial shall not proceed without compliance with a previously issued order of the convening authority, it means just that and not that it will not proceed, provided the accused’s counsel applies to the court-martial for relief to which he is already entitled and which the court cannot, in any way, deny him. A fruitless procedure should not be made the condition of insuring obedience to a perfectly proper judicial direction.
I would reverse the decision of the board of review and remand the case for a rehearing.