(dissenting):
This Court decided in United States v Culp, 14 USCMA 199, 33 CMR 411, that in trials by court-martial the appointment of nonlawyer-counsel is constitutionally and statutorily permissible.
In the instant case, my view is that after the accused was informed of the procedure for requesting a lawyer to defend him, he made a deliberate decision to keep the counsel already appointed.
This case is distinguishable, I believe, from United States v Cutting, 14 USCMA 347, 34 CMR 127. On the day of his trial, Cutting requested military legal assistance. In contrast, before his trial Williams only mentioned that he wanted to look into “the possibilities of a lawyer.” Despite his later decision against making a request to be represented by a Navy lawyer, his merely entertaining the idea has been held to be a “desire to consult with legal counsel.” Since the base legal officer knew that at his base there were only two Navy lawyers, of whom he was one and the other of whom would have responsibility in a review of the case, I perceive no assumption of authority by him in informing the accused of this fact. He also informed the accused that he could apply “to Commanding Officer, Submarine Base, and COMCRUDESLANT and COMTHREE would be contacted as to whether counsel was available.”
The accused has been restored to duty after the appointed nonlawyer-counsel persuaded the convening authority to suspend the bad-conduct discharge and at least two months of the confinement and forfeitures. Confinement at hard labor for four months and forfeitures of $60.00 per month for four months are the penalty, then, for the three offenses of possession, use, and attempted sale of marihuana.
I would affirm this conviction.