(dissenting):
I dissent.
In United States v Donohew, 18 USCMA 149, 152, 39 CMR 149 (1969), this Court unanimously placed upon the military judge the responsibility of getting, on the record, “the accused’s personal response to direct questions incorporating each of the elements of Article 38(b),1 as well as his understanding of his entitlement thereunder.” (Emphasis supplied.) In the case at bar, the Court of Military Review, finding that the. military judge’s advice to this accused with regard to his right to counsel under Article 38 (b) was “confusing, misleading, and [prejudicially] erroneous,” set aside the findings and sentence and directed that a rehearing may be ordered. In reply to the certified question of the Judge Advocate General, which asks whether the Court of Military Review was correct,2 my brothers hold that it is *622“absurd to conclude from the record before us that the appellee did not understand the full extent of his right to counsel,” citing United States v Turner, 20 USCMA 167, 43 CMR 7 (1970). I dissented in Turner, and do so here for the reasons set forth in my separate opinion in that case.
The advice of the military judge to the accused and his replies thereto are set forth partially in the body and fully in the Appendix to the majority opinion and need not be restated. Suffice to say, I agree with the Court of Military Review that the advice was “confusing, misleading, and erroneous.” Can any other interpretation be placed upon the misadvice to the accused that in the event he decided to proceed with the lawyer appointed by the Admiral to defend him, he waived his right to be defended by personally selected civilian or military counsel? The advice was patently erroneous. Article 38(b), Code, supra.
The accused’s replies (simply “Yes, sir” or “No, sir”) to the subsequent questions by the military judge must be evaluated not in a vacuum but as having been given with the erroneous advice as the initial basis for the accused’s knowledge and understanding of his right to counsel. When the correct advice was subsequently given it was obviously contrary to the originally stated misadvice, yet the accused in no way indicated that he understood or appreciated the paradox. Under such circumstances, I do not believe that it can be said, as do my brothers, that “the subsequent colloquy between the judge and the accused compels the conclusion that the accused was fully informed of, and knew and understood, the full limits of the right to counsel under Article 38(b).” Logic argues to the contrary.
In United States v Noe, 7 USCMA 408, 22 CMR 198 (1956), this Court unanimously wrote:
“. . . The law is well settled that the ‘instruction as a whole’ test is inapplicable where the court has been instructed both rightly and wrongly on a material issue. The correct instruction does not cancel out the prejudicial taint of the erroneous one. If two instructions are in direct conflict and one is clearly prejudicial the rule of the correct instruction as a whole does not apply. . . .
“This Court will not speculate as to the possible interpretation of an erroneous instruction. Chief Judge Quinn, for the Court, in United States v Williams, 1 USCMA 186, 2 CMR 92 [1952], announced:
‘. . . We can not speculate as to whether the court interpreted the law officer’s instruction rightly or wrongly. When a substantial right is denied we will not speculate as to the extent of the damage done.’ ” [Ibid., at pages 410, 411.]
My brothers contend that Noe, supra, and United States v Williams, 1 USCMA 186, 2 CMR 92 (1952), are inapposite since the record of trial cannot disclose the court members’ understanding of conflicting instructions because their deliberations and discussions are secret, while here the accused’s replies are a matter of record. Indeed his replies are on the record and his answers, when considered in conjunction with the erroneous advice, make his understanding as secret as the deliberations of the members of the court. The substantial right involved in the matter under consideration cannot be denied. United States v Dono-hew, supra.
But even were I to hold otherwise, I believe that affirmance of the finding of the Court of Military Review is required. The members of the court determined that the advice of the military judge was “confusing, misleading, and erroneous.” This is a finding of fact and as Judge Darden, for a unanimous Court in United States v Phifer, 18 USCMA 508, 510, 40 CMR 220 (1969), wrote:
*623. . Under these circumstances :
. . (W)e are bound by purely factual determinations of the board of review (United States v Judd, 10 USCMA 113, 27 CMR 187 [1959]; United States v Remele, 13 USCMA 617, 33 CMR 149 [1963]), unless such conclusions are arbitrary and capricious, so as to amount to an abuse of discretion (United States v Wheatley, 10 USCMA 537, 28 CMR 103 [1959]). . . United States v Baldwin, 17 USCMA 72, 77, 37 CMR 336 [1967].) (Emphasis supplied.)”
Since I do not find the Court of Military Review’s conclusions in this case to be arbitrary and capricious, I believe we are bound thereby. United States v Phifer, supra.
I would answer the certified question in the affirmative.
“ (b) The accused has the right to be represented in his defense before a general or special court-martial by civilian counsel if provided by him, or by military counsel of his own selection if reasonably available, or by the defense counsel detailed under section 827 of this title (article 27). Should the accused have counsel of his own selection, the defense counsel, and assistant defense counsel, if any, who were detailed, shall, if the accused so' desires, act as his associate counsel; otherwise they shall be excused by the military judge or by the president of a court-martial without a military judge.”
Article 27, Uniform Code of Military Justice, 10 USC § 827, describes the qualifications for counsel authorized in general or special courts-martial.
The holding of the Court of Military Review was based on its prior opinion in “United States v Wyman, No. 70 1847 (NCMR 7 Aug 1970)” where it had “considered and condemned as prej-udicially erroneous similar advice given by the military judge.” Wyman, which was published five months before the opinion in this case, was never certified to this Court. A copy of the Wyman opinion was attached to the brief of appellate defense counsel.
Inasmuch as both Wyman and the case at bar were decided prior to United States v Chilcote, 20 USCMA 283, 43 CMR 123 (1971), it can be assumed *622that the holding was concurred in by at least the majority of the en banc members of the Court of Military Review.