(dissenting):
I
Our recognition that the Supreme Court is the final arbiter of constitutional construction and that its decisions are binding on this Court does not solve the problems this case presents. The real issues are whether the Sixth Amendment right to counsel, as construed by the Supreme Court in Argersinger v Hamlin, 407 US 25 (1972), applies to summary courts-martial and, if so, whether denial of that right prohibits the use of a summary court-martial conviction in another trial as evidence in aggravation of punishment.
Congressional enactments deserve *307deference in determining the balance that must be struck between the protection of an accused’s constitutional rights and the needs of military discipline. As the Supreme Court stated in Burns v Wilson, 346 US 137, 140 (1953):
Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exerted no supervisory power over the courts which enforce it; the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers expressly entrusted that task to Congress.
Mr. Chief Justice Vinson went on to state that military courts “have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights.” Id. at 142. But, in a later opinion by Mr. Justice Black, one of the dissenters in Burns, the Supreme Court declared, “As yet it has not been clearly settled to what exent the Bill of Rights and other protective parts of the Constitution apply to military trials.” Reid v Covert, 354 US 1, 37 (1957). Compare Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv L Rev 293 (1957), with Wiener, Courts-Martial and the Bill of Bights: The Original Practice, 72 Harv L Rev 1, 266 (1958).
This Court has not followed the dictum in the separate opinion of Mr, Chief Justice Chase in Ex parte Milligan 71 US (4 Wall) 2, 138 (1866), that “the power of Congress in the government of the land and naval forces . . . is not at all affected by the fifth or any other amendment,” Instead, it has declared that the provisions of the Bill of Rights, except those expressly or by necessary implication inapplicable, are available to members of our armed forces. United States v Tempia; 16 USCMA 629, 37 CMR 249 (1967); United States v Culp, 14 USCMA 199, 33 CMR 411 (1963); United States v Jacoby, 11 USCMA 428, 29 CMR 244 (1960). And the Court has implemented this declaration by applying it to strike down the practice of taking depositions upon written interrogatories in the absence of the accused and his counsel; to require full advice as to counsel rights in compliance with the Supreme Court’s construction of the Fifth Amendment in Miranda v Arizona, 384 US 436 (1966); and to consider the constitutional implications of the requirement of counsel in serious criminal cases. See United States v Tempia, supra; United States v Culp, supra; and United States v Jacoby, supra.
But the Court’s decisions have not applied specific provisions of the Bill of Rights to military law without regard for their effect on the mission of the armed forces and the basic reason for their existence. Rather, we have recognized the need for balancing the application of the constitutional protection against military needs. Thus, we stated in United States v Priest, 21 USCMA 564, 570, 45 CMR 338, 344 (1972):
The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.
Our recognition of this limiting factor is not unique. The Supreme Court earlier had pointed out that:
Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is *308not Served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.
United States ex rel. Toth v Quarles, 350 US 11, 17 (1955). See also Reid v Covert, supra at 39.
The armed forces of today are substantially different in size and nature from their composition at the time of Chief Justice Chase’s dictum in Ex parte Milligan, supra. During a war or national emergency, the existence of authority for involuntary induction causes the armed forces to consist of hundreds of thousands of persons who are basically civilians serving only temporarily. The current objective is an all volunteer force. But discipline must exist for an effective fighting force, irrespective of whether that force is a relatively small one composed of many persons intending a career of military life or a larger one that is predominantly civilian in orientation.
The armed forces have long had authority for subjecting members to short periods of confinement without implicating counsel Who perform in more serious kinds of courts-martial. Correctional custody may be imposed under the provisions of Article 15, Uniform Code of Military Justice, 10 USC § 815, and confinement up to 30 days may constitute the sentence of a summary court-martial.1 The comparative punishment limits of summary courts and Article 15 proceedings may not be sufficiently different to justify the continued existence of summary courts, but Congress has determined that both are essential to the maintenance of military discipline by providing a rapid means of summary punishment for minor infractions of military law. And in any judicial system speedy justice often has the effect of returning the offender to future compliance with societal norms.
It is not our task to evaluate the harmful effect on discipline of the application of Argersinger’s requirement that an accused be represented by counsel before a summary court may impose confinement. As the Supreme Court said in Burns v Wilson, supra at 140, “The Framers expressly entrusted that task to Congress.” Congress as an institution has superior fact-finding machinery to predict or to measure impact on discipline and to take corrective action if the result is unacceptable. This Court possesses no special competence to evaluate the effect of a particular procedure on morale and discipline and to require its implementation over and above the balance struck by Congress.2 My own experience is that nothing in the life of a judge as a judge qualifies him to override the *309congressional determination that counsel before summary courts would introduce time-consuming or cumbersome procedures counteracting the objective of swift reaction to minor offenses.3
Nothing in the Argenainger opinion gives the slightest hint that the members of the Supreme Court contemplated that this decision would be applied to members of the armed forces. If Supreme Court decisions of this type are to be applied in a military context, that Court, rather than this one, should direct it. Only then will it be able to balance military needs against competing considerations. For example, the several opinions in Ar-gerainger provide suggestions about how the new requirement for counsel may be met, including representation by law students under adequate supervision. Since Argerainger addressed only civilian trials, understandably none of the opinions reflects an awareness that the military departments do not have available to them enough military lawyers to implement the decision.4 And, for the same understandable reasons, the case does not discuss the complications of applying the requirement for counsel to the world-wide administration of military justice.
These considerations lead me to conclude that, short of a direct holding by the Supreme Court that a military accused cannot constitutionally be sentenced to short periods of confinement by a summary court-martial unless he is represented by counsel, our proper course is to continue to honor the congressional judgment that no such representation is required.
II
But assuming the applicability» of the Argerainger doctrine to summary court convictions, I see no reason to invalidate the use of prior convictions by summary courts in other trials.
The manual for Courts-Martial, United States, 1969 (Rev ed), paragraph 76b (2), permits the introduction in aggravation of punishment of “any previous convictions of the accused by courts-martial” that relate to offenses committed within a 6-year period next preceding the commission of any offense of which the accused stands convicted at his present trial. Under certain circumstances, proof of previous convictions may also serve to increase the maximum permissible punishment. MCM, para 127c. See also United States v Prescott, 2 USCMA 122, 6 CMR 122 (1952).
Argersinger v Hamlin, supra, does not invalidate the conviction of a defendant who was not provided with counsel during his trial. It speaks only in terms of prohibiting the imposition of a sentence to confinement without the accused’s having the assistance of counsel during the trial. The Court’s opinion states:
We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.
407 US at 37.
The Court went on to say, “Under the rule" we announce today, every judge will know when the trial of a misdemeanor starts that no imprison*310ment may be imposed, even though local law permits it, unless the accused is represented by counsel.” Id. at 40. Finally, action on the case was reversal of the Florida Supreme Court’s denial of a writ of habeas corpus, the granting of which would have the. effect of freeing Argersinger from his confinement in the hands of Sheriff Hamlin.
Unlike the result in Gideon v Wainwright, 372 US 335 (1963), involving felony trials, the Court did not. void a misdemeanant’s conviction but interposed a constitutional prohibition against deprivation of liberty without counsel. Gideon voided the entire trial and a consequence was to forbid the later use of the void conviction in aggravation of sentence. United States v Tucker, 404 US 443 (1972). Under Argersinger, the conviction remains valid. Only the sentence to confinement is interdicted. An accused therefore is left with a Conviction against him with only a part of his punishment set aside. From Argersinger's language, on remand the trial judge apparently would not be compelled to retry a defendant but constitutionally could resentence him to a penalty not involving deprivation of liberty.
As the conviction is not affected by the failure to provide counsel to the accused, I perceive no sound basis for forbidding its use at another court-martial in aggravation of sentence or to support an increased maximum sentence. For such purposes, the significant consideration is that the accused’s conduct has resulted in his receiving earlier punishment, the form of such punishment not being important in the later proceeding. In military law, it is the conviction that counts, rather than the sentence. Since the Supreme Court has not held such a procedure to be constitutionally invalid, I would continue to permit its use in the circumstances of this case.
I would affirm the decision of the United States Navy Court of Military Review.
While it may be argued that counsel should be required for summary courts-martial since they constitute criminal convictions and not. for Article 15 proceedings as they are nonjudicial and corrective in nature, the effect of confinement under the former and correctional custody under the latter is difficult to distinguish. See In re Gault, 387 US 1 (1967). Consequently, I would have difficulty in sustaining the position that while counsel must be provided . before summary courts-martial, they may be dispensed with in Article 15 proceedings that may result in correctional custody.
Even if due process as applied to military personnel were something less than civilian due process, expansion of judicial control would mean that the judiciary, and not the Congress, would balance the rights of the individual against the necessities of discipline. The danger is not only that the courts will be insensitive to military requirements and arrive at mistaken conclusions by applying experience gained in administering a criminal law designed for deterrence to a system designed to inculcate positive discipline, but that erroneous decisions will have the rigidity of a constitutional determination..
Note, Constitutional Rights of Servicemen Before Courts Martial, 64 Colum L Rev 127, 148 (1964).
Following testimony that summary courts should be abolished, Congress struck a balance by providing that no accused could be tried by a summary court over his objection. S Rep No 486, 81st Cong, 1st Sess 13 (1949). The objection would lead either to dismissal of the charges or to trial by special or general court-martial in which case he would be provided counsel. Articles 20, 27, Uniform Code of Military Justice, 10 USC §§820, 827.
Although the functioning of the draft law resulted in the armed forces having the temporary services of many capable young lawyers who elected to serve for longer than the minimum draft period, too few have been attracted to military careers. Even with the benefit of their service, the Department of Defense has had shortages of experienced military lawyers. The ending of the military draft is likely to hinder the procurement of adequate numbers of even inexperienced lawyers.