(concurring in the result):
Recognizing that an Article 321 hearing serves important purposes for an accused, as well as for the Government, this Court has stressed that the accused is “on timely objection . . . entitled to judicial enforcement of” a right denied him at the hearing, “without regard to whether such enforcement will benefit him at the trial.” United States v. Mickel, 9 U.S.C.M.A. 324, 327, 26 C.M.R. 104,107 (1958), cited in United States v. Donaldson, 23 U.S.C.M.A. 293, 294, 49 C.M.R. 542, 543 (1975) '(emphasis added). The accused here interposed timely objection to denial of the right Article 32 accords to “cross-examine witnesses against him.” However, under the article the right to cross-examine applies only to witnesses who “are available.” The Government contends the accused was not denied the right because the witnesses were, in fact, unavailable.’ The principal opinion notes the issue and purports to provide “some guidance on the application of the concept of ‘availability,’ ” but it advances a reason for deciding the appeal against the accused that I do not understand.
My view of the matter is that the witnesses were not available for cross-examination within the meaning of Article 32. Both witnesses were civilians. The Uniform Code of Military Justice does not, itself, provide for compulsory process to obtain the presence of a civilian witness at an Article 32 investigation. The Manual for Courts-Martial, United States, 1951, paragraph 34d, specifically commented on the absence of any “provision [in military law] for compelling the attendance of witnesses not subject to military jurisdiction” at an Article 32 hearing. Cf. paragraph 115, Manual, supra. This Court remarked on the deficiency in United States v. Farrison, 10 U.S.C.M.A. 220, 221, 27 C.M.R. 294, 295 (1959); while not deciding the matter, the Court observed that, in practical terms, “the decision as to availability might rest with the witness himself.” The Manual for Courts-Martial, United States, 1969 (Revised edition), para. 34 d, as amended by Executive Order 11835 (dated January 29, 1975), 40 Fed.Reg. 4247 (1975), omitted the 1951 Manual’s comment on the unavailability of process to compel an unwilling civilian witness to appear and testify at an Article 32 hearing. The omission, in my opinion, did not change the law, although it does provide for payment of an allowance to a witness who agrees to appear voluntarily. See my dissent in United States v. Quan, 4 M.J. 244 (C.M.A.1978).
The absence of compulsory process was a central factor in all the rulings below upholding the decision of the Article 32 investigating officer that the civilian witnesses were unavailable for cross-examination by the accused. At the time of the Article 32 hearing, both civilian witnesses had stated they would not attend without subpoena. *147At the trial, they testified in connection with a defense motion to dismiss;2 each acknowledged she had been requested to appear, but both stated that they had refused to attend. I agree with the Court of Military Review below that ample evidence supports the trial judge’s ruling that the witnesses were not available for the Article 82 hearing and the accused was, therefore, not denied any right assured him by the article.
For the reason indicated, I join in affirming the decision of the United States Navy Court of Military Review.
. Uniform Code of Military Justice, 10 U.S.C. § 832.
. Material error in the conduct of an Article 32 proceeding justifies appropriate relief, not dismissal of the charges. United States v. Samuels, 10 U.S.C.M.A. 206, 27 C.M.R. 280 (1959).