(concurring in the result):
As to that part of the defense request for production of certain persons mentioned in testimony received at the Article 32 investigation for the purpose of pretrial interview, I note that none of the procedures that would enable the defense to examine a possible witness before trial were invoked, even though civilian counsel had been specifically apprised of them. Further, the appellant failed to provide any evidence to indicate that the requested individuals had information material to his defense. Consequently, in my opinion, the trial judge properly rejected the defense motion to dismiss.1 For this reason alone, I would affirm the decision of the Court of Military Review.
In regard to other aspects of the principal opinion, I disagree with its view of trial counsel’s comment as to the nonexistence of pretrial statements by the requested witnesses. As Lane, one of those witnesses, had testified at the Article 32 investigation and earlier had given a statement to a special agent, the opinion implies that trial counsel should be censured for his negative reply to the judge’s question whether there were “any statements made by these individuals relating to this case.” I perceive in the record a reasonable explanation for that answer, and I do not condemn trial counsel for it.
The principal opinion acknowledges the probability that the military defense counsel who represented the accused at the Article 32 investigation had told civilian defense counsel about Lane’s testimony and statement. I think the probability rises to the level of virtual certainty when consideration is given to the fact that civilian counsel appeared in the investigation itself before it was concluded, and later represented the accused at a hearing to determine whether he should be retained in confinement. Counsel’s comments at the detention hearing leave no doubt in my mind that he at least knew about Lane’s testimony and statement. The principal opinion also acknowledges the probability that the accused had received a copy of the Article 32 proceedings, as required by the Article. Since civilian defense counsel was officially in the case before the completion of the Article 32 investigation, I think it more than likely that he was in possession of, or had read, the accused’s copy of Lane’s testimony and statement. Consequently, I am certain that trial counsel believed that civilian counsel knew about the Lane statements. I believe, too, he considered that fact when he responded to the trial judge’s question.
To understand trial counsel’s negative reply, I believe the trial judge’s question must be considered, not by itself, as the principal opinion considers it, but in the context of the remarks by civilian counsel that immediately preceded it. In my opinion, these remarks demonstrate that trial counsel answered as he did because he believed defense counsel’s remarks concerned the wit*174nesses other than Lane, since the defense had Lane’s statements; and, as the trial judge’s question was predicated upon those remarks, he concluded it also pertained only to those witnesses. The relevant interchange is as follows:
IDC: And I believe that if the prosecution intended to proceed against Lucas in the first place, in the manner that they have thus far, that in some way the testimony or the statements of all these witnesses should be available to defense counsel and it may be that they should be available to testify.
MJ: Are there any statements made by these individuals relating to this case in writing at this time?
TC: No, sir.
Although I would not condemn trial counsel for what to me was an honest mistake in his understanding of the trial judge’s question, I recognize that even such a mistake might result in harm to an accused. However, as the principal opinion demonstrates, no possibility of prejudice exists. For this reason, I, too, join in the affirmance of the decision of the Court of Military Review.
. Substantively, the motion should have been a motion for appropriate relief, that is, to subpoena the witnesses as provided by Article 46 or to depose the witnesses under Article 49, Uniform Code of Military Justice, 10 U.S.C. §§ 846 and 849, respectively.