(dissenting) :
I dissent.
The question posed by this appeal is whether the accused’s pleas of guilty were provident in view of the failure of the military counsel to comply with the positive directions of civilian counsel who was in charge of the proceedings. My brothers do not decide the question on the ground that time has rendered the issue moot. In taking *155this position, I believe they err, for, in my opinion, there can be no practical solution where a question of adequate legal representation at trial is concerned. See Gideon v Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 93 ALR 2d 733 (1963).
When it became apparent that the accused was to be charged, in Vietnam, with offenses against the Uniform Code of Military Justice, the accused’s father retained civilian counsel to represent him. The latter immediately wired the staff judge advocate in Vietnam, through the services of the Marine Corps in Washington, D. C., to enter his appearance as counsel for the accused, to request sufficient time for him to come to Vietnam, and to insure that the accused pleaded not guilty. Thereafter, in a series of letters (see Appendix) between the civilian lawyer and appointed military counsel, the possibility of a negotiated agreement was discussed. At all times, the civilian attorney took the position that he did not desire any agreement which failed to provide for immediate remission of the punitive discharge, if one was assessed. If this could not be obtained, the civilian attorney was ready to proceed to Vietnam and to try the case against the accused on a plea of not guilty. He specifically did not want his client to undergo a period of probation. Military counsel, however, was only able to obtain an agreement which, among other penalties, provided for the remission of “a bad conduct discharge suspended for the period of confinement and six months thereafter.” On April 28, ' ^68, military counsel, by letter, so in- ’ rmed civilian counsel. In addition, he disclosed that he had scheduled the trial for the following day and would proceed with the guilty plea based on this agreement. Accused was tried on April 29, 1968, and a plea of guilty entered.
Appellate defense counsel contended before this Court that military counsel acted against the direct instructions of civilian counsel by proceeding to trial in accordance with a pretrial agreement which was in contravention of his authority. I agree.
In a post-trial affidavit, military counsel acknowledged that civilian counsel was in charge of the case. He discussed the terms of the pretrial agreement with the accused and, allegedly, went to trial thereon with the consent of the accused.
In a counter affidavit, the accused asserted that at all times he desired to follow the wishes of civilian counsel, a lifelong acquaintance, and was not aware that the agreement obtained by military counsel had not been approved by civilian counsel. He never saw the letters which passed between counsel and had he known what civilian counsel had written, he would not have entered into the pretrial agreement.
An accused is entitled to be represented before a general or special court-martial by civilian counsel if he so chooses. Article 38(b), Uniform Code of Military Justice, 10 USC § 838. In such an event, the.appointed military counsel will, if the accused desires, act in the capacity of associate counsel. Paragraph 48a, Manuals for Courts-Martial, United States, 1951, and 1969 (Revised edition). As associate counsel his duties “are those which the individual counsel may designate.” Paragraph 46d, Manual, supra. (Emphasis supplied.) This rule is especially important where, as here, a guilty plea is entered, for a guilty plea waives all defects not jurisdictional or depriving of due process. United States v Schalck, 14 USCMA 371, 34 CMR 151; United States v Hamil, 15 USCMA 110, 35 CMR 82.
I find it significant that at no time has military counsel contended that he believed the pretrial agreement he secured was in accord with civilian counsel’s direction. The fact that the agreement was signed April 27th, civilian counsel was advised thereof by letter on April 28th, trial was held April 29th, and the civilian lawyer did not receive the letter until after the date of trial, all indicate that military *156counsel did not have approval from civilian counsel. I am of the opinion that under these circumstances the accused’s pleas of guilty were improvident. Cf. United States v Stovall, 16 USCMA 291, 36 CMR 447.
When the case came on for trial, military counsel announced that he would defend the accused by himself. No inquiry jvas made as to whether the accused had been informed of his right to secure the services of individual counsel under Article 38(b), Code, supra (United States v Donohew, 18 USCMA 149, 39 CMR 149), nor did military counsel inform the law officer that civilian counsel had been retained. Since the law officer was unaware of this fact, he had no basis for inquiring into the reason for civilian counsel’s absence (United States v Tavolilla, 17 USCMA 395, 38 CMR 193), or to determine why he, as principal counsel, had .not signed the pretrial agreement. I am certain that, had this information been available to the law officer, his inquiry would have disclosed the matters now under consideration (United States v Care, 18 USCMA 535, 40 CMR 247) and would have obviated the necessity for this appeal. He certainly could not have accepted the plea under these circumstances. Article 45(a), Code, supra.
I would reverse the decision of the board of review and order the charges and its specifications dismissed. United States v Sheeks, 16 USCMA 430, 37 CMR 50.
APPENDIX
Office of the Staff Judge Advocate 3d Marine Division (Rein), FMF FPO San Francisco 96602
8 April 1968
Mr. Samuel B. Cinamon •
237 D Street
South Boston, Mass. 02127
Dear Mr. Cinamon:
Thank you very much for your most recent letter. I think there are a few questions that may be answered at this time.
I believe the case was sent to the Commanding General today with the Staff Judge Advocate’s Pre-trial'Advice Letter. This letter recommended trial by General Court-Martial. The Commanding General’s action will be received in the next day or .so.
Pursuant to a request by Speaker of the House John McCormack, Robert was examined by the 3d Marine Division psychiatrist on 7 April 1968. I have not received a written report but a conversation with the neuro-psychi-atric clinic revealed that Robert was responsible for his actions and capable of standing trial. I will forward a copy of this evaluation as soon as I receive it.
You were curious about a possible predetermined sentence. This is a PreTrial Agreement between the accused and the Commanding General. With the agreement the accused pleads guilty to all charges and specifications in return for a guaranteed sentence. The Commanding General being the first review level and' having complete discretion with respect .to the findings and sentence.
The case still would go to trial and the court would impose sentence. If this turned out to be less than the sentence in the agreement, then the lesser punishment would be imposed.
I feel that a Pre-Trial Agreement providing for a suspended bad conduct discharge and confinement for about six to' ten months would be possible. This is based on the very strong defense which we have and the difficulty the government must go to to prove its case. I have taken no action in this matter because of your previous letters.
I will write to you as soon as the case is referred so that we may establish a timetable for the trial. I am sure we will be able to give you more than enough time to travel here and prepare for trial.
If you have any questions concerning' *157the material I have just covered please let me know.
Sincerely,
/s/ Philip S. Keith PHILIP S. KEITH Capt USMCR
SAMUEL B. CINAMON • Attorney at Law
o57 Ti
SOUTH BOSTON 27, MASS.
ANdrew 8-5800
JAmaica 2-2700
Area Code 617
'
April 14, 1968
Dear Captain Keith:
I came into my office today in order to do some work on my taxes (procrastination is an occupational disease) and found your letter of April 8th.
You mention a pre-trial agreement providing for “a suspended bad conduct discharge and confinement” etc.
What provisions, if any, would be made for-remission of the suspended portion of the sentence? Would the suspended portion take effect after serving the confinement portion ?
Is it possible to get confinement alone, without a bad-conduct discharge, suspended or otherwise. Would the convening authority be willing to impose a six or ten months sentence PERIOD. Then Robert would be returned to active duty and that would be the end of the whole business.
I am fearful of the badconduct discharge. That is the complete fear of Robert’s father. I am certain that you can understand his feelings which are both that of father and a marine.
There is no question on this end that a punishment not involving a BCD or DD (within reason of course) would be acceptable, and save me a trip.
I took my first shots today. Washington has advised me that April 23rd is the date set for trial and I have informed them that date is completely impossible for me. The notice is much too short and I must arrange my affairs. I have requested June 17th and am waiting to hear. •
Let me hear from you. I still have hopes that I will not have to go.
It seems to me that with the strong defense a six months sentence together with the fact that he has apparently already been reduced to private should be satisfactory to all concerned. He could then be returned to active duty. If in the future something else happens it would be a new trial on whatever it was. But that thought of a BCD is absolutely frightening to the family.
I hope that you have had a pleasant holiday (if such it can be called during war) and still that this can be arranged.
Sincerely,
/s/ Samuel
SAMUEL B. CINAMON Attorney at Law
237 D Street
SOUTH BOSTON 27, MASS. ANdrew 8-5800 JAmaica 2-2700 Area Code 617 16 April 1968
Philip S. Keith
Capt. USMCR
Division Legal Office
3rd Marine Division (Rein), FMF
FPO San Francisco 96602
Re: L/cpl Robert Feely
Dear Captain Keith:
I am writing this letter in an attempt to make my thoughts as clear as possible on a pre-trial agreement. It seems, from your letter of 8 April 1968, that we are almost in complete agreement, and that possibly there is no need for me to go to Vietnam.
I would hope for a pre-trial agreement which would approve only so much of the sentence as provided for confinement at hard labor, total forfeiture, and a reduction.
As to confinement can 6 to 10 months be arranged?
As to punitive discharge can a remission be arranged ?
Obviously I am most concerned that there be no punitive discharge hang*158ing over the defendant’s head. I want to make certain that after serving his time he can return to active duty for as long as he owes the Corps and then get his Honorable Discharge; that during the period of confinement and thereafter, he does not have hanging over his head the possibility of a BCD or a DD; in so far as reduction and forfeiture are concerned, we could care less.
I have been informed that trial date has been set for 3 May 1968. It is completely impossible for me to arrange my time on this short a notice, There is no fee involved to me on this case. I can not possibly be in Vietnam on 3 May 1968 and have suggested the compromise date of 3 June 1968.
I hope that no trip will be necessary and that you can make a pre-trial agreement which would be satisfactory to all concerned.
This would have the affect of saving the Government a trial (or a comparatively long one, at any rate), and a trip that no one can afford.
Please do what you can and let me know the results so that a decision can be made. What is the best you can get?
If this can be done, in addition to the other letters which will probably pass between us, please let me hear from you when you arrive in Boston.
Sincerely,
/s/ SAMUEL B. CINAMON
SBC/elaf
N. B. Captain — you will note from the psychiatrist’s report why this has hit my friend and associate so hard. Please understand.
/s/ SAM
SAMUEL B. CINAMON Attorney at Law
237 D Street
SOUTH BOSTON 27, MASS.
ANdrew 8-5800
JAmaica 2-2700
Area Code 617
April 26, 1968
Philip S. Keith
Capt. USMCR
Division Legal Office
3rd Marine Division (Rein), FMF
FPO San Francisco 96602
Re: L/cpl Robert M. Feely
Service No. 2209210
Dear Captain Keith:
Please let me know what is going on. I haven’t heard anything concerning my request for a postponement to June 3rd and am deeply concerned.
If a pre-trial agreement as outlined in my most recent letter to you, with an immediate remission of a punitive discharge is acceptable, please let me know so that I can advise the family.
If it has been impossible to enter into a mutually satisfactory pre-trial agreement, I must have sufficient notice to enable me to fly to Vietnam. I am informed that my area clearance runs out on the 28th and naturally that will have to be renewed.
I have hope that this has been satisfactorily resolved and that I can meet you in Boston rather than in Vietnam.
Sincerely,
/s/ SAMUEL SAMUEL B. CINAMON
SBC/elaf
Division Legal Office
3d Marine Division (Rein), FMF
FPO San Francisco 96602
28 April 1968
Mr. Samuel B. Cinamon
237 D Street
South Boston, Mass. 02127
Dear Mr. Cinamon:
I have submitted the following pre trial agreement in Robert’s case: a bad conduct discharge suspended for the period of confinement and six months thereafter; confinement at hard labor for eight months with the excess suspended for the period of confinement and six months thereafter; forfeitures as awarded for eight months and any excess suspended for the period of confinement and six months thereafter; and reduction as awarded. This would be the maximum sentence approved by the Convening Authority, *159the Commanding General. This agreement has been approved.
On the basis of your letter I have scheduled the trial for tomorrow and will proceed with a guilty plea. I think we may receive a lighter sentence from the court because of the material we have in extenuation and mitigation. I am particularly going to try to have no discharge awarded by the court.
I am glad to see we have avoided the expense and trouble of a long trip to Vietnam. I am sure that the present agreement places us in as good a position as we would have been had you appeared here. I want to thank you for your assistance in obtaining material for use in extenuation and mitigation. I will let you know tomorrow the results of the trial.
I look forward to meeting you upon my return to Boston.
Sincerely,
/s/ Philip S. Keith PHILIP S. KEITH Capt USMCB.