(dissenting):
Apart from the fact that I would sustain court-martial jurisdiction on the basis of my dissent in United States v Borys, 18 USCMA 547, 40 CMR 259, one other factor bearing on the power of the court-martial to try this case merits discussion.
Initially, the accused was apprehended by civilian authorities. Through the efforts of his civilian counsel, he obtained his release from the civilian authorities and an informal commitment that ■ no civilian prosecution would be had if the military “punished” him. It is, of course, settled that court-martial jurisdiction over the person cannot be conferred by consent. Never before O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), however, had there been any need to consider whether the accused can consent to be tried by court-martial for an offense which is cognizable in a civilian court. That question is raised by this case.
Congress has defined the accused’s acts as crimes and made them triable *562by court-martial. As my brothers construe O’Callahan, the accused has the constitutional right to be tried for the offenses of the kind in issue in a civilian court. Constitutional rights can be waived. I have no doubt that the accused’s civilian counsel knew and understood the rights to which the accused was entitled if the trial was held in a civilian court. In these circumstances, I think the accused effectively waived the rights he would have had if tried in a State court and effectively consented to trial in a military court which, under the Uniform Code of Military Justice, is empowered by Congress to try the offenses of which the accused stands convicted.
As to the validity of the accused’s plea of guilty, this Court is not the accused’s counsel and it does not, in my opinion, have the right to change decisions made by the accused and his civilian and military lawyers after full and informed consideration of all the relevant circumstances, especially when the decisions are deemed by them to be beneficial to the accused. Of course, we can protect an accused against the errors of incompetent counsel or against a manifest miscarriage of justice, but neither of these is present in this case. See my dissent in United States v Leggs, 18 USCMA 245, 39 CMR 245.
I would affirm the decision of the board of review.