(dissenting):
I dissent.
This case is before us on certification by the Judge Advocate General of the Army for review of the correctness of the decision of the Court of Military Review in setting aside the accused’s conviction and directing that a rehearing may be ordered. That court’s decision was based on the fact that the record of trial failed to reflect that the accused had been formally arraigned. Paragraph 65a and the Guide — Trial Procedure, Appendix 8, Manual for Courts-Martial, United States, 1969 (Revised edition); United States v Boehm, 17 USCMA 530, 38 CMR 328 (1968); United States v Robinson, 13 USCMA 674, 33 CMR 206 (1963). My brothers hold that if it was error not to follow the procedures indicated in the Manual, the error, under the circumstances of this case, did not prejudice the accused and did not east doubt upon the integrity of the trial. I disagree.
In McClaughry v Deming, 186 US 49, 62, 46 L Ed 1049, 22 S Ct 786 (1902), the Supreme Court held:
"... A court-martial is the creature of statute, and, as a body or tribunal, it must be convened and constituted in entire conformity with the provisions of the statute, or else it is without jurisdiction.”
And in Runkle v United States, 122 US 543, 555, 556, 30 L Ed 1167, 7 S Ct 1141 (1887), the following appears:
*430“A court-martial organized under the laws of the United States is a court of special and limited jurisdiction. It is called into existence for a special purpose and to perform a particular duty. When the object of its creation has been accomplished it is dissolved. ... To give effect to its sentences it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with, and that its sentence was conformable to law.” [Emphasis supplied.]
See also Dynes v Hoover, 20 Howard 65 (U. S. 1858); United States v Brown, 206 US 240, 51 L Ed 1046, 27 S Ct 620 (1907); United States v Vanderpool, 4 USCMA 561, 16 CMR 135 (1954); United States v Robinson, supra.
Paragraph 65, Manual, supra, provides in part :
“ARRAIGNMENT, a. General. When a general or special court-martial has been organized and both parties are ready to proceed, the trial counsel will present the court with copies of the charges and specifications upon which the accused is about to be tried. . . . The trial counsel will then read to the accused the charges and specifications. Thereafter, each accused will be called upon to plead. This proceeding constitutes the arraignment. The pleas are not part of the arraignment. The accused may waive the reading of the charges and specifications.
“If an Article 39(a) session is conducted by the military judge prior to assembly, the arraignment may be held and the pleas of the accused accepted at that time if permitted by the regulations of the Secretary concerned.” [Emphasis supplied.]
Appendix 86, Manual, supra, page A8-13, describes the arraignment procedure as follows:1
“MJ: The accused will now be arraigned.
“NOTE. The TC now should present to the members of the court and the MJ copies of only those charges and specifications upon which the accused is to be arraigned, unless distributed earlier with the consent of DC.
“TC: All parties to the trial have been furnished with a copy of the charges. Does the accused desire that they be read?
“DC: The accused (waives the reading of the charges) (desires that the charges be read).
“NOTE. If the accused desires that the charges be read, the TC now reads the charges and specifications on which the accused is to be tried, with the name and description of the accuser, the affidavit, and the reference for trial. They are copied verbatim into the record at this point, regardless of whether the accused waives the actual reading of the charges and specifications. If the accused waives the reading of the charges, the MJ should rule on the waiver and the TC should make the following summary:
“MJ: The reading of the charges may be omitted.
“TC: The charges are signed by -, a person subject to the code, as accuser; are properly sworn to before a commissioned officer of the armed forces authorized to administer oaths; and are properly referred to this court for trial by -, the convening authority.
“TC: The charges were served on the accused by (me) (-) on -, 19-.
“NOTE. Unless the date of service is at least five days prior to the *431date of trial, except in time of war, the accused may object to this defect in service (Art. 35). See 58c. If he does so, the court must grant a continuance at this point.
“MJ: -, I now ask you, how do you plead ? Before receiving your pleas, I advise you that any motions to dismiss any charge or to grant other relief should be made at this time.
“NOTE. The arraignment is complete when the accused is asked how he pleads. Neither pleas nor motions are part of the arraignment (65a).” [Emphasis partially supplied.]
These provisions of the Manual state valid principles of procedure and are not contrary to or inconsistent with the Uniform Code of Military Justice. Article 36(a), Code, supra, 10 USC § 836. They are consonant with the context and clear intention of the Code. As such, they have the force of law. United States v Smith, 13 USCM A 105, 32 CMR 105 (1962).
In the case at bar, the accused, at his request, was tried by a military judge sitting alone. Of the seventy-seven pages of the record, sixty-two covered the Article 39(a) session. After approving the accused’s request for trial by judge alone, the record discloses the following:
“MJ: . . . I now announce that the court is assembled and we will proceed with the case. I now ask the accused, how does he plea [sic] ?
“DC: Sir, the accused pleads:
“To all Charges and Specifications, Guilty.
“MJ: All right. Thank you, you may be seated. Okay, will you rise please, Specialist Napier? Specialist Four Danny L. Napier, it is my duty as military judge to inform you that in accordance with your pleas, this court finds you:
“Of all Specifications and Charges, Guilty.”
The record fails to reflect adherence to the basic arraignment procedures detailed in the Manual. The charges and specifications were not read to the accused and he was not requested to waive the reading thereof. Of more importance is the fact that the charges and specifications were not incorporated in the record verbatim, nor does the record reflect the name and description of the accuser, his affidavit, and the necessary data reflecting that the charges were referred to trial.
Because of this deficiency in the record, the Court of Military Review requested briefs from counsel on the question of whether the failure to follow the prescribed procedure for arraignment precluded affirmance of the conviction. As part of its reply the Government included a certificate of correction from the trial judge which purported to correct the deficiency. However, because the certificate of correction contained patently erroneous information,2 appellate Government counsel joined with appellate defense counsel in its motion requesting the Court of Military Review to strike the certificate from the matters it would consider. The Court of Military Review also declined to consider Appellate Exhibit 1, the pretrial agreement executed between the accused and the convening authority. Although the agreement sets forth the charges and specifications, it did not reflect the additional pertinent data from the charge sheet and, like the certificate of correction, contained patently erroneous information.3 Since the record of trial did not contain “all the essential jurisdictional facts” *432(paragraph 826, Manual, supra), the Court of Military Review reversed the accused’s conviction.
Paragraph 826, Manual, supra, provides in part:
“. . . The record of the proceedings in each case will be separate and complete in itself and independent of any other document. The record will show all the essential jurisdictional facts.” [Emphasis supplied.]
A verbatim listing of the charges and specifications, as in Appellate Exhibit 1 (the pretrial agreement), is not the whole of the charge sheet upon which the accused is tried. A most necessary part thereof is that data detailing the identity of the accuser, his affidavit as to his knowledge of the charges, and the concomitant referral of the charges to a particular court-martial convened by order of the convening authority. Without these data, it cannot reasonably be said that the court is convened “in entire conformity with the provisions of the statute.” McClaughry v Deming, supra, at page 62. Jurisdiction of a court-martial does not attach simply because the parties agree thereto. United States v Robinson, Runkle v United States, and McClaughry v Deming, all supra.
I am aware that in Garland v Washington, 232 US 642, 644, 58 L Ed 772, 34 S Ct 456 (1914), the Supreme Court sustained a conviction without arraignment where “the accused had taken objections to the second information, and was put to trial before a jury upon that information in all respects as though he had entered a formal plea of not guilty.” Cf. Hamilton v Alabama, 368 US 52, 7 L Ed 2d 114, 82 S Ct 157 (1961). The proceedings in that case, however, were before a duly established permanent court of that state and a duly acting judge thereof. This distinction is made clear in McClaughry v Deming, supra, at page 64:
“. . . The particular [military] tribunal is a mere creature of the statute, as we have said, and must be created under its provisions. ... A court-martial is wholly unlike the case of a permanent court created by constitution or by statute and presided over by one who had some color of authority although not in truth an officer de jure, and whose acts as a judge of such court may be valid where the public is concerned.”
I am of the opinion that the deficiency in this record is of such a nature as to deprive the court of jurisdiction and its actions, therefore, were null and void.
In his certificate, the Judge Advocate General asks the following questions :
I. “Is the record of trial sufficiently complete to show all the essential jurisdictional facts and protect the accused against double jeopardy?”
II. “If the first question is answered in the negative, is a rehearing the proper remedy?”
I would answer the first question in the negative and the second in the affirmative.
The arraignment procedure is the same when the arraignment is held at the Article 39(a), Uniform Code of Military Justice, 10 USC § 839, session. See NOTE, page A8-6, Manual for Courts-Martial, United States, 1969 (Revised edition).
The certificate of correction listed, among the charges and specifications, one offense that was dismissed by the convening authority before trial and another offense that was dismissed by the trial judge himself prior to the entry of the accused’s plea. Hence, the certificate of correction reflected pleas and findings of guilty to two offenses that were nonexistent.
The dismissed charges and specifications were also included in the agreement.