(dissenting):
I dissent, consistent with the position taken in my minority opinion in United States v. Newcomb, Docket No. 31,188, 5 M.J. 4 (1978). In that case I indicated that the military jury selection process involves discretionary action by the convening authority insofar as selecting which service persons are “best qualified” to be members of courts-martial. I will not extend that acknowledged general obligation under Article 25(d)(2), Uniform Code of Military Justice, 10 U.S.C. § 825(d)(2), to include for the convening authority the particular responsibility to determine the precise membership of each court based on the peculiarities of each case or on the individual accused to be tried by court-martial.1
The issue assigned for review was whether the court-martial which tried the appellant had jurisdiction over him in view of the method used to select the members at his court-martial.2 The failure to find jurisdiction in the present case is based on a purported fundamental defect in the court-martial order “which convenes or creates the court-martial entity.” 3
More particularly, the majority finds defective the procedure whereby the convening authority, after selecting the enlisted and officer members for court-martial duty, permitted subordinate administrative personnel to add these enlisted members to preselected officer panels when an accused requested enlisted membership.
In spite of the fact that these court-martial orders were signed at the direction of the convening authority, this process of panel assignment is viewed by the majority as an impermissible delegation of statutory power under Article 25(d)(2), supra. This conclusion rests on the implicit finding as a matter of law that the convening authority is required by the aforementioned code provision to personally arrange the precise membership of each accused’s court-martial. Herein lies my disagreement with the majority, for I believe this statute simply establishes the responsibility of the convening authority to select those persons from the military community best qualified for general jury duty.4
Article 25(d)(2), supra, states:
When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.
My reading of the legislative history of this codal provision does not support its overly broad interpretation which would include in its purview the right of a military accused to have a court composed of members personally tailored to the accused’s needs by the convening authority. Rather, the general legislative purpose of the provision appears to me to place the responsibility on the convening authority to personally provide the military accused with the most eligible prospective jury members. Cf. 28 U.S.C. § 1865 and A.B.A. Standards, Trial by Jury § 2.1 (1968). In this light, the addition of enlisted members already selected by the convening authority should be viewed as a mere ministerial function inherent in the administration of justice in any court system. Cf. 28 U.S.C. § 1866. Accordingly, I find no impermissible delega*103tion of authority under Article 25(d)(2), supra, in the present case.5
Moreover, United States v. Allen, 5 U.S.C.M.A. 626,18 C.M.R. 250 (1955), an opinion relied on heavily by the majority, is not an appropriate case on which to base a purported right in the military accused to a court of members tailored by the convening authority to his particular court-martial: In that case, the question concerned the propriety of excusal by a staff judge advocate of members already listed on a court-martial order for a particular court-martial appropriately referred. In my opinion, Article 29, U.C.M.J., 10 U.S.C. § 829, in conjunction with Article 25(d)(2), supra, was the basis for the accused’s right to a particular composition of the court at that period in the court-martial proceedings.
I believe Article 25(d)(2), supra, and all other appropriate codal prescriptions were complied with in the present case. It is uncontroverted in the record of trial that the convening authority selected all officers and enlisted personnel for duty as members in the appellant’s court-martial. Moreover, there is no challenge to their qualifications to sit as members, or any claimed abuse by the convening authority in selecting them as qualified for general duty as members of court-martial.6 Accordingly, I conclude that this convening authority has complied with the Congressional intendment that a convening authority must choose “the basic composition of courts-martial assembled under his aegis.” See United States v. Allen, supra at 639, 18 C.M.R. at 263.
. See United States v. Crawford, 15 U.S.C.M.A. 31, 58, 35 C.M.R. 3, 30 (1964), (Ferguson, J., dissenting).
. Article 25(d)(2), Uniform Code of Military Justice, 10 U.S.C. § 825(d)(2).
. See McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902); Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887).
. See United States v. Crawford, supra at 36, 35 C.M.R. at 6.
. See United States v. Kemp, 13 U.S.C.M.A. 89, 32 C.M.R. 89 (1962); United States v. Sax, 19 C.M.R. 826, 837 (A.F.B.R., 1955), pet. denied 6 U.S.C.M.A. 822 (1955).
. United States v. Crawford, supra at 47, 35 C.M.R. at 19 (Kilday, J., concurring in the result).