(dissenting) :
I dissent.
I believe that my brothers misapprehend the intent of Congress in its amendment of the Uniform Code of Military Justice. Public Law 90-632, 90th Congress, 2d Session, 82 Stat 1335. The report of the Senate Committee (Number 1601) to accompany H.R. No. 15971, clearly states, in connection with the amendment of Article 27, Code, supra, 10 USC § 827:
“. . . The committee believes that an accused should be represented by legal counsel in a court-martial which may result in a sentence as severe as confinement for 6 months. It is the intent of the committee that the considerations applicable to the detailing of military judges to certain special courts-martial (set forth above in the analysis of sec. 2(5)) shall apply to the detailing of legally qualified defense counsel to special courts-martial. It is understood that this requirement may create a manpower problem, but the committee believes that with sufficient attention and effort the problem can be overcome and resort to the unavailability ex*547ception can be kept to a minimum.” [Emphasis supplied.]
Where such counsel cannot be made available, the convening authority is required to make a detailed written statement to be appended to the record indicating why counsel was not available and setting forth the reasons why the trial had to be held at that time and place notwithstanding the unavailability of qualified defense counsel. In such an event, the special court-martial, as in those cases where a military judge is not available, is not empowered to adjudge a bad-conduct discharge.
In the case at bar, charges against the accused were referred to trial by Captain R. W. Hyde, Commanding Officer, Naval Station, Boston, Massachusetts, before a special court-martial appointed by his convening order, Serial Number 1271, dated October 20, 1969. No special instructions were set forth in the appropriate section of the charge sheet. A review of Serial Number 1271, unsigned, but containing the typed name “R. W. HYDE,” reflects that counsel detailed to represent the accused and the Government were not qualified counsel in the sense of Article 27 of the Code. The convening order fails to reflect any statement as to the unavailability of qualified counsel. Subsequently, a modification to Serial Number 1271, also unsigned but containing the typed name “J. L. HARRISON” and “By direction” reflects that unqualified counsel were replaced by new counsel, both of whom were lawyers in the sense of Article 27 of the Code. My brothers believe that the original convening order was legal, despite its designation of nonlawyer counsel, and that the amendment to the convening order was properly signed by a subordinate in accordance with Navy Regulations and conferred jurisdiction on the special court-martial to adjudge a bad-conduct discharge. I disagree.
The power to convene a court-martial and refer charges to trial is vested in the convening authority (Articles 22-29, Code, supra, 10 USC §§ 822-829) and may not be delegated. United States v Greenwalt, 6 USCMA 569, 20 CMR 285 (1955); United States v Williams, 6 USCMA 243, 19 CMR 369 (1955); United States v Bunting, 4 USCMA 84, 15 CMR 84 (1954). This power extends to the designation of particular counsel to serve at the court-martial. Article 27, Code, supra. While some official correspondence may be signed by a subordinate “By direction” of the superior (United States v Marsh, 3 USCMA 48, 11 CMR 48 (1953); United States v Haimson, 5 USCMA 208, 17 CMR 208 (1954); United States v Greenwalt, supra), not every action of the superior may be so handled. Article 1608, United States Navy Regulations (1948), provides in part:
“2. Official correspondence which is required by law or regulation to be signed by an officer in the execution of the duties of his office shall be signed by him in his own handwriting.
“3. Other than the above, official correspondence may be signed for ... , an officer in command, . . . by subordinate officers when authorized by him to do so.” [Emphasis supplied.]
The authority to sign “By direction” is contained in paragraph 4 of the Regulation. Paragraph 6 of the Regulation allows the use of a facsimile signature “Except as required in paragraph 2 above.”
It is clear that since only an authorized officer may convene a court-martial and designate its membership, he may not, even under Navy Regulations, delegate the authority to a subordinate to sign the order. Paragraph 2, Navy Regulations, supra. Not even a facsimile signature may be used in this connection. The original order in this case, “certified to be a true copy” by trial counsel, contained only the printed name “R. W. HYDE.”
Of greater significance is the fact that the amendment of the convening order, which conferred upon this court-martial jurisdiction to award *548the bad-conduct discharge adjudged in this case, is likewise unsigned. It too was “certified to be a true copy” by trial counsel, yet it contained only the printed words “J. L. HARRISON, By direction.” My brothers’ contention that “failure of the defense to challenge the regularity of the order at trial constitutes waiver in accordance with paragraph 67 6, Manual for Courts-Martial, United States, 1969 (Revised edition)” is unavailing since, as they also note, “jurisdictional defects may not be waived. United States v Wheeler, 10 USCMA 646, 28 CMR 212 (1969); paragraph 686(1) (2), Manual . . . [supra].”
In light of the stated Congressional intent that every accused be represented at trial by special court-martial by a qualified attorney, with a jurisdictional prohibition against the imposition of a bad-conduct discharge where such counsel is truly not available, I am of the opinion that the appointing order should contain the required explanation as to unavailability when a special court-martial order without lawyers is promulgated. Cf. United States v Fleming, 18 USCMA 524, 40 CMR 236 (1969). When qualified attorneys subsequently become available, the order appointing them to the court must be made and signed personally by the officer charged with that responsibility. Failure to do so, as in this case, is a jurisdictional defect and renders the proceedings null and void. United States v Robinson, 13 USCMA 674, 33 CMR 206 (1963).
I would reverse the decision of the Court of Military Review and direct that a rehearing may be ordered.