(concurring in part and dissenting in part):
In this case we are called upon to decide whether the defense counsel was statutorily disqualified from rep*115resenting the appellant at trial. Article 27, Uniform Code of Military Justice, 10 USC § 827, in pertinent part, mandates that “[n]o person who has acted for the prosecution may act later in the same case for the defense.” A problem is raised here because even though the defense counsel at trial stated, “I have acted only in the defense capacity in this case,” his name appears in the allied papers as the “judge advocate” with whom the case was “discussed” by the Army criminal investigators on “5 Jan 1971,” the date of the events in question. The nature of that discussion is nowhere related. No mention was made of this discussion at the Article 39(a) session, which appears to have proceeded according to the Guide — Trial Procedure in Appendix 8, Manual for Courts-Martial, United States, 1969 (Revised edition).
It is impossible for this Court to speculate about the subject of the discussion between Captain Motley and the criminal investigators. The range of possibilities extends from merely having advised a judge advocate that the incident had occurred to having requested and received legal advice on proceeding against the suspect. Nevertheless, unless the nature of such a discussion is made known to us, we are unable to determine whether it constituted action for the prosecution on the part of the defense counsel in the sense of Article 27 of the Code. However, I do feel that the popular view is that when military police officers, during the course of their investigation, discuss that investigation1 with a member of the office from which the prosecution will be selected, the discussion is for the purpose of seeking advice relative to the merits of possible or probable prosecution. I believe that such advice, if given, constitutes action on behalf of the prosecution. Unfortunately, the facts of this case tend to give the appearance that this is what happened; and, I believe that Article 27(a), Code, supra, was enacted so that records of military proceedings will clearly show that there has been no impropriety and eliminate any appearance of impropriety.
In any event, in keeping with the intent of that statute, the determination whether such action for the prosecution has occurred is not for the trial defense counsel to make, especially when the only disclaimer of record appears in the preliminary boilerplate at the initial Article 39(a) session. What might not have appeared to the defense counsel to be action for the prosecution might appear very differently to the accused, the military judge, or an appellate court. The record is silent whether the accused was advised of the defense counsel’s discussion with the criminal investigators, as required by paragraph 48c, Manual, supra, which provides in part that it is the duty of defense counsel
“. . . to disclose to the accused any interest he may have in connection with the case, any ground of possible disqualification, and any other matter which might influence the accused in the selection of counsel.”
Moreover, I construe paragraph 61/(4), Manual, supra, to require a defense counsel to respond affirmatively to trial counsel’s question as to whether he has “acted in the same case as a member of the prosecution” by reciting any action he may have taken on behalf of the prosecution, thereby imposing upon the military judge the duty to excuse the defense counsel forthwith “[i]f it appears that . . . [he] has previously acted in the same case for the prosecution.” Thereafter, if it ap*116pears, as it does here, that the defense counsel was involved in any manner with the Government’s prosecution of the case and if such action had not been made part of the record at trial, I cannot indulge in presuming he did not act for the prosecution in accordance with his conclusive statement at trial, but rather would require that the matter be inquired into at a rehearing limited to the question of the disqualifition of the defense counsel. Cf. United States v DuBay, 17 USCMA 147, 37 CMR 411 (1967). If the defense counsel had in fact acted for the prosecution within the meaning of Article 27, Code, supra, a matter on which I express no opinion, then the mandatory disqualification required by the Code supersedes the inclination to accept even the stock averments of counsel at face value. This case differs from both United States v Williams, 21 USCMA 459, 45 CMR 233 (1972), and United States v Phillips, 22 USCMA 4, 46 CMR 4 (1972), where we permitted convictions to stand even though both defense counsel had previously appeared on orders as trial counsel. In those cases the potential disqualifications were fully disclosed on the record before the military judge, unlike the situation herein where the possible disqualification was not brought to the attention of the military judge at all.
I am not unsympathetic to military problems arising from the investiture in the office of the staff judge advocate of multiple responsibilities to members of the command. I believe in this instance however that the system of military justice would be better served by a more strict interpretation of what I consider to be a positive command of the Congress.
I agree with the majority in finding no prejudice to the appellant in the convening authority’s delay in the review of the conviction.
The Military Police Progress Report reflects that at the time of the discussion with Captain Motley the investigators were aware that the appellant had reportedly thrown a chair at Captain Tureck, his commanding officer, striking him about the head and shoulders; pointed a loaded rifle, which subsequently discharged four rounds into the ceiling of the méss hall, at Lieutenant Miles; and, departed the unit area and was then in an absence without leave status.