(concurring in part and dissenting in part) :
I believe that the court erred in admitting the summary court-martial conviction into evidence.
Beginning with the premise, as I do, that with certain exceptions criminal constitutional standards announced by the United States Supreme Court are applicable as precedent to this Court, a federal court, unless there is demonstrated a military necessity demanding nonapplicability, the constitutional determination reached in Argersinger v Hamlin, 407 US 25 (1972), applies to criminal actions brought within the system of military justice. The record contains no evidence which convinces me that application of the Argersinger rule should not be followed in our system because of military necessity. Conversely, it has come to our attention that both the United States Air Force and United States Army currently apply the ruling to summary court-martial procedures. See Henry v Warner, No. 73-354-DWW (CD Cal April 13, 1973).
In Argersinger, the Chief Justice of the United States, in a concurring opinion, stated:
Were I able to confine my focus solely to the burden that the States will have to bear in providing counsel, I would be inclined, at this stage of the development of the constitutional right to counsel, to conclude that there is much to commend drawing the line at penalties in excess of six months’ confinement.
407 US at 41. Likewise, if I were able to ignore the constitutional message in Argersinger I would be inclined to continue to accept and vouchsafe the procedures for summary courts-martial as provided by Congress. However, the significance of my philosophical approach to the relationship of this Court to Supreme Court decisions renders that inclination nonactionable.
The Chief Judge of this Court may well be accurate in his appraisal that perhaps the Argersinger court did not give a thought as to whether or not its decision would have an adverse impact upon military justice. But if this logic is to be followed it would lead to the principle that this Court would only follow the constitutional determinations of the Supreme Court wherein it is shown that it had specific concern for military justice. I cannot accept that kind of a condition to the implementation of constitutional standards; furthermore, I believe a majority of this Court has rejected that philosophy. See United States v Tempia, 16 USCMA 629, 37 CMR 249 (1967) ; United States v Jacoby, 11 USCMA 428, 29 CMR 244 (1960).
Argersinger v Hamlin, supra, as I understand it, permits the adjudication of so-called minor criminal offenses with two grades of justice. First, the Court held that “no imprisonment may be imposed, even though local law permits it,' unless the accused is represented by counsel.” 407 US at 40. The various opinions of the members of the Supreme Court premise this restriction on imprisonment upon the Sixth Amendment right of an accused to be represented by counsel, or upon the Fifth Amendment right to be afforded due process of law. Unless represented by counsel, the Court decides that the quality of justice is not constitutionally adequate to permit imprisonment upon conviction.
The Court in Argersinger was not faced with and did not decide whether counsel is necessary for a conviction *304when no punishment is imposed; therefore, the constitutionality of such a conviction remains undecided.1 As a result, the second aspect of Arger-singer remains to permit a trial and conviction of an accused for a minor offense when he is not represented by counsel in those cases where there is no sentence to confinement. Briefly stated another way, presently a person can be convicted of some minor offenses in proceedings characterized by a lower quality of justice.
Some rather strange results are posed for our system of justice under the Argersinger rationale. At a summary court-martial a lawyer would be necessary if the accused were to be sentenced to one day’s confinement. A lawyer would not be necessary if an accused were to be reduced in rank and caused to forfeit a portion of his pay, which may be the more detrimental sanction.
Other somewhat bizarre results are possible. Pursuant to the Manual for Courts-Martial, United States, 1969 (Revised edition), in certain circumstances a summary court-martial conviction can be used in aggravation of punishment after a subsequent court-martial conviction. Moreover, in certain instances, maximum permissible punishment may be escalated because of a prior conviction by summary court-martial. If we were to hold that a person tried, convicted, and sentenced to confinement by summary court-martial can apply the Argersinger rule to completely void the conviction, then obviously it cannot be used as a matter in aggravation or as a matter to trigger an escalation of maximum punishment in a subsequent court-martial. But for a person who is tried, convicted, but not sentenced to confinement, because he is unrepresented by counsel at a summary court-martial, his conviction can be used for both of the purposes mentioned above. Generally speaking, the American concept of criminal sanctions suggests that only those persons who have committed the more serious offenses are imprisoned. The climax of this scenario appears to be that under the view which would void only convictions followed by imprisonment, a person, unrepresented by counsel, who has committed a less serious crime, has the potential for having that conviction later used against him; however, the person who has committed in all probability the more serious crime but was not represented by counsel will enjoy immunity against the subsequent use against him of a conviction which is void for want of counsel.
Like the Argersinger court, in the case today wé need not consider constitutional requirements in cases where lesser crimes are charged, and there is no representation of the accused by counsel, and no sentence to imprisonment. Like Mr. Justice Powell, concurring in the result in Argersinger, wherein he points out a number of somewhat illogical results of the decision, I believe the result I reach herein has much the same potential for the creation of problems for military justice. Nevertheless, under the facts of this case and reading Argersinger as I do, I am presently unwilling to extend that rule to hold that the constitution requires counsel for an accused at all summary court-martial proceedings.
I cannot read Argersinger to hold that only the sentence to confinement rather than both the finding of guilty (conviction) and sentence are constitutionally invalid. First, if only the sentence to confinement is constitutionally invalid, it would appear that the Sixth Amendment right to be rep*305resented by counsel or the due process of law requirement could be satisfied by the representation of counsel after conviction and during the sentencing procedure. In my judgment the Ar-gersinger result is not so shallow.
Mr. Justice Douglas’ opinion evidenced concern for the entire trial process, not just the sentencing phase. In Argersinger he states:
We reject, therefore, the premise that since prosecutions for crimes punishable by imprisonment for less than six months may be tried without a jury, they may always be tried without a lawyer.
The assistance of counsel is often a requisite to the very existence of a fair trial.
The requirement of counsel may well be necessary for a fair' trial even in a petty-offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more. See, e. g., Powell v Texas, 392 US 514 (1968) ; Thompson v Louisville, 362 US 199 (1960); Shuttlesworth v Birmingham, 382 US 87 (1965).
The trial of vagrancy cases is illustrative. While only brief sentences of imprisonment may be imposed, the cases often bristle with thorny constitutional questions. See Papachristou v Jacksonville, 405 US 156 (1972). (Emphasis added.)
407 US at 30, 31, 33. He further cites, 407 US at 34, 35, The Report by the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 128 (1967):
Inadequate attention tends to be given to the individual defendant, whether in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction. The frequent result is futility and failure. (Emphasis added.)
Concluding his opinion, Mr. Justice Douglas states, 407 US at 40:
The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of “the guiding hand of counsel” so necessary when one’s liberty is in jeopardy.
The necessity that the accused will receive the “ ‘guiding hand of counsel’ ” suggests that the constitutional message is that unless an accused is represented by counsel throughout the trial proceeding no imprisonment may be meted out as a sanction.
Chief Justice Burger, concurring in the Argersinger result, states:
The issues that must be dealt with in a trial for a petty offense or a misdemeanor may often be simpler than those involved in a felony trial and yet be beyond the capability of a layman, especially when he is opposed by a law-trained prosecutor. There is little ground, therefore, to assume that a defendant, unaided by counsel, will be any more able adequately to defend himself against the lesser charges that may involve confinement than more serious charges. Appeal from a conviction after an un-counseled trial is not likely to be of much help to a defendant since the die is usually cast when judgment is entered on an uncounseled trial record. (Emphasis added.)
407 US at 41. Again, the expressed concern is for the fairness of the entire trial.
Mr. Justice Powell, concurring in the result, forewarns anomalies in the trial of lesser offenses. He comments:
Since the services of counsel may be essential to a fair trial even in cases in which no jail sentence is imposed, the result of this type of pretrial judgment could be arbitrary and discriminatory.
*306407 US at 54. Mr. Justice Powell speaks of his understanding of the rule in terms that the services of counsel “may be essential to a fair trial.”
In reaching their conclusion, Chief Justice Burger, Mr. Justice Douglas, Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Stewart join, cite Gideon v Wainwright, 372 US 335 (1963), and Powell v Alabama, 287 US 45 (1932). In those cases the constitutional malady of the denial of counsel rendered the entire proceeding invalid.
Acceptance of logic that summary courts-martial convictions where there was no representation of the accused by counsel and the accused was sentenced to imprisonment does not void the conviction, I feel, inaccurately appraises the position of the Supreme Court in Argersinger. Argersinger is a rule which articulates a constitutional demand that the entire trial of a case when an accused is sentenced to be imprisoned can only be met by providing the accused representation of counsel or securing his waiver.
I am unable to accept the possibility that where an accused is imprisoned after a trial at which the requirements of Argersinger were not complied with, his conviction remains intact, and only his imprisonment is impermissible. Stated another way, I think it impermissible to have a criminal conviction where an accused is denied his Sixth Amendment right or due process right to be represented by counsel. See Henry v Warner, supra; Cordle v Woody, 350 F Supp 479 (ED Va 1972); Daigle v Warner, 348 F Supp 1074 (D Haw 1972); Ramirez v Texas, 486 SW2d 373 (Tex Crim App 1972).
I agree with Judge Quinn that under the rule of United States v Tucker, 404 US 443 (1972), evidence of previous convictions obtained at a trial at which an accused was improperly denied representation of counsel is inadmissible for consideration of an accused’s sentence.
I am constrained to state that I feel that under the system of military justice, the concept of indigency is of no real relevancy. Upon entry into military service, I believe, that if there is a right of counsel according to law then counsel must be furnished all members regardless of their financial status. “[N]o service man appears, before a court-martial alone and there are no ‘indigents’ before courts-martial.” United States v Culp, 14 USCMA 199, 202, 33 CMR 411, 414 (1963). Of course, it is an accused’s right pursuant to law to procure individual military or civilian counsel of his own choice. Therefore, I disagree that this accused’s assertion of the invalidity of his previous conviction is conditioned upon his demonstration of indigency.
Since there is no evidence that Aider-man was represented by anyone exclusively acting in his behalf at any previous summary courts-martial, I do not reach the question of the qualification of a counsel necessary to satisfy the constitution.
Without belaboring the matter of retroactivity of the Argensinger rule, I conclude that inasmuch as it concerns the constitutional integrity of the fact-finding process, it is to be applied retroactively. See Robinson v Neil, 93 S Ct 876 (1973); Linkletter v Walker, 381 US 618 (1965).
In the case at bar, I would hold the previous conviction invalid, and the record of trial returned to the Court of Military Review for further proceedings consistent with this opinion.
Two justices spoke to this problem. Mr. Justice Douglas, for the majority, stated:
We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail.
407 US at 37. Mr. Justice Brennan, concurring, stated:
Thus, although the new rule is extended today only to the imprisonment category of cases, the Court’s opinion foreshadows the adoption of a broad prophylactic rule applicable to all petty offenses.
407 US at 62.