(dissenting):
I dissent.
The entry of a plea, by or on behalf of the accused, is not a simple rule of procedure, as contended by my brothers. United States v Robinson, 13 USCMA 674, 33 CMR 206 (1963). Article 46(a), Uniform Code of Military Justice, 10 USC § 845, provides in part that if an accused
“. . . fails or refuses to plead, a plea of not guilty shall he entered in the record. . . .” [Emphasis supplied.]
The entry of the plea in the record in an integral and, in my opinion, an indispensable part of the court-martial process since it is specifically required by statute. As stated in Runkle v United States, 122 US 543, 555, 556, 30 L Ed 1167, 1170, 7 S Ct 1141 (1887):
“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. ... 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. Dynes v Hoover, 61 U. S. 20 How. 65, 80 (15:838, 844); Mills v Martin, 19 Johns. 33. There are no presumptions in its favor so far as these matters are concerned." [Emphasis supplied.]
See also McClaughry v Deming, 186 US 49, 46 L Ed 1049, 22 S Ct 786 (1902); 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.
An examination of the legislative history of the Uniform Code of Military Justice reveals that the statutory requirement for the entry of a plea on the record was, when enacted, a new provision of the law.1 Prior to the enactment of the Code, the court-martial could “proceed to trial and judgment as if he pleaded not guilty when an accused fails or refuses to plead or answers foreign to the purpose.” Paragraph 71, Manual for Courts-Martial, U. S. Army, 1949. Cf. Garland v Washington, 232 US 642, 58 L Ed 772, 34 S Ct 456 (1914). Obviously, the Congress, by its action, was desirous of erecting additional safeguards to court-martial procedures. Absent the statutorily required plea in the record, it cannot reasonably be said that “all the statutory regulations governing its proceedings had *71been complied with.” Runkle v United States, supra, at page 556. Indeed, the court has not been 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, McClaughry v Deming, all supra.
In United States v Robinson, supra, this Court held the findings and sentence void where no plea of guilty was entered by or on behalf of the accused before a properly convened court. The late Judge Kilday, writing for the majority in Robinson, rejected the Government’s contention, based on Garland v Washington, supra, that the issue involved nothing other than a question of arraignment which, in that case, was waived. He wrote, at page 681:
“. . . We do not agree. The proceedings in that case were before a duly established permanent court of the State and a duly acting judge thereof. This distinction is made clear in McClaughry v Deming, supra:
‘. . . The particular tribunal is a mere creature of the statute, as we have said, and must be created under its provisions. It is a special body convened for a specific purpose, and when that purpose is accomplished its duties are concluded and the court is dissolved. The officers composing the alleged court were not de facto officers thereof, for there was no court, and therefore it could not have de facto officers. ... 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.’ (186 US at page 64.)”
This distinction between a duly established permanent court of a state and a military court serves to highlight the fact that a court-martial must proceed in entire conformity with the statute in order “[t]o give effect to its sentences.” Runkle v United States, supra, at page 556. Failure to so proceed is, in my opinion, jurisdictional error. United States v Robinson, Runkle v United States, McClaughry v Deming, all supra. See also United States v Dean, 20 USCMA 212, 43 CMR 52 (1970), and United States v Smith, 20 USCMA 444, 43 CMR 284 (1971), where we held that failure to obtain in writing an accused’s request for trial by judge alone, as required by Article 16, Code, supra, 10 USC § 816, was a jurisdictional defect.
I would reverse the decision of the Court of Military Review and direct that a rehearing may be ordered.
See Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1053; House Report No. 491, 81st Congress, 1st Session, page 23; Senate Report No. 486, 81st Congress, 1st Session, page 20.