(dissenting):
I am not persuaded by any of the reasons advanced by the majority that a request for trial before a military judge alone made at trial orally, rather than in writing, with full understanding of the right to trial by a court-martial composed of court members and of other rights incidental to a trial before court members, and after consultation with qualified counsel, is a jurisdictional defect. In my opinion, Article 16, Uniform Code of Military Justice, 10 USC § 816, requires a writing only when a request for trial is made outside the courtroom in circumstances which are not recorded as part of the court proceedings.
Article 16 does not require that the request for trial by a military judge be in a special form and it does not require that it bear the signature of the accused. In my opinion, the official transcript of the judge’s questions and the accused’s responses constitute a writing sufficient to satisfy the statute. But even if I am wrong in this view, this Court has always been guided by the practice in the Federal civilian courts, when a different practice is not prescribed by the Uniform Code. Arti-*216ele 16 is identical in purpose and requirement to Rule 23, Federal Rules of Criminal Procedure, regarding the waiver of a jury trial. The uniform rule in the Federal courts, as acknowledged by the majority, is that an oral waiver of the constitutional right to a jury trial is contrary to Rule 23, but is not necessarily reversible error. That rule is completely compatible with Article 16. It is also consistent with the well-settled rule in military law that substance not form determines whether a departure from prescribed procedure constitutes reversible error. Only last month, we held that the accused’s understanding of a fact essential to a valid request for a trial by a military judge, which under the Manual for Courts-Martial is required to be set out in the request, can properly be supplied by proof outside the writing. United States v Turner, 20 USCMA 167, 43 CMR 7 (1970).
I would affirm the decision of the United States Navy Court of Military Review.