(dissenting):
The principal opinion apparently applies a rule of partial disqualification of the law officer. If he were in fact disqualified, he was disqualified for all purposes and not for only one specification.
When the law officer realized one of the specifications was deficient, he apparently was concerned that his required ruling would vitiate a pretrial agreement the accused considered favorable to him. Despite the law officer’s solicitude, he has no responsibility for protecting a pretrial agreement, and he was performing beyond his duty when he inquired whether a change in the Article under which concealment of the grenade was charged and pleaded was likely to invalidate the agreement. But the accused and his counsel were fully informed of what the law officer had done, and he suggested a recess if they wanted to be reassured about the effect on the pretrial agreement of a plea to a lesser included offense. The accused and his counsel obviously had no objection to the law officer’s actions. In United States v Mortensen, 8 USCMA 233, 24 CMR 43 (1957), and United States v Turner, 9 USCMA 124, 25 CMR 386 (1958), this Court held in similar circumstances that any possible challenge for cause was waived. Despite the attempt to distinguish Mortensen in the principal opinion, the effect of the decision in this case is to overrule those two cases.
I would affirm the decision of the Court of Military Review.