(dissenting):
As in my dissent in United States v. Heard, 3 M.J. 14 (1977), I again note my strong disagreement with the implication that Article 36, Uniform Code of Military Justice, 10 U.S.C. § 836, restricts the rule-making authority of the President to the proceedings at trial. However, until such time as the implication is elevated to decision, I need not set forth my reasons. Suffice it now to say that, in my opinion, the President and the services are authorized to prescribe the forms of notice of a decision of the Court of Military Review which will start the running of the period of time prescribed by Article 67, UCMJ, within which an accused must petition this Court for further review. As the majority concede that the existing rules are constitutionally sound, I am impelled to conclude that the accused’s exercise of the right to appeal to this Court is out of time. No evidence has been presented of the existence of any circumstance, such as fraud upon, or coercion of, the accused, that would toll the running of the statute. I would, therefore, grant the Government’s motion, and dismiss the accused’s petition for grant of review.
Military practice, as the majority acknowledge, assures an accused of continuing advice as to his right to review of his conviction. More than that, military law mandates assignment of counsel for him, regardless of his financial worth or whether there is a basis upon which to alter the results of trial. It seems to me, therefore, that the majority’s recommendation, in note 19, of the procedure suggested in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), for a counsel who perceives “the absence of merit in his client’s appeal” is inappropriate. In Anders, the Supreme Court proposed that “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Id. at 744, 87 S.Ct. at 1400. That suggestion was made to overcome the constitutional inadequacies of the then California practice, under which court-appointed counsel could ask to withdraw because he found no merit in the appeal and, thereafter, the defendant was left without counsel, even though he had asked for substitute counsel and had himself advanced a number of assignments of error. That situation cannot occur in the military.
While I suppose there can be an occasion when the personal beliefs of appellate defense counsel might justify his withdrawal, an accused cannot, in the military, be left without appointed counsel, unless he voluntarily surrenders the right. And, no appointed counsel is in a position to disadvantage an accused’s appeal by a requirement that, as a condition to being allowed to withdraw, he certify that, in his opinion, the accused’s appeal is totally lacking in merit. I believe, therefore, the Anders procedure is ill suited to the military. I think it sufficient to emphasize, as the majority properly have, that defense counsel is an advocate for the accused, not amicus to the court. United States v. Evans, 18 U.S.C.M.A. 3, 39 C.M.R. 3 (1968); United States v. Mitchell, 16 U.S.C.M.A. 302, 36 C.M.R. 458 (1966).