(concurring in the result):
I concur in the result reached by the majority opinion and the conclusion that no abuse of discretion by the military judge existed in the present case. Nevertheless, several considerations mentioned in that opinion appear superfluous to a proper review of this ruling of the military judge. In particular, the facts of the lack of prompt notice and apparent unavailability of officer members are not expressly provided in the Uniform Code of Military Justice as reasons to warrant denial of a request for trial by members. Cf. Article 25, UCMJ, 10 U.S.C. § 825.
I believe the focus of our review should be on the question of whether the original waiver of trial by members “was an effective one, intelligently made.” In this light, the appellant at all times was represented by presumably competent civilian and military counsel, and he “was fully able to comprehend the [nature of the] charges against him.” United States v. Bryant, 23 U.S.C.M.A. 326, 328, 49 C.M.R. 660, 662 (1975), citing Riadon v. United States, 274 F.2d 304, 307 (6th Cir. 1960), cert. denied 364 U.S. 896, 81 S.Ct. 225, 5 L.Ed.2d 189 (1960). Yet, this case also involves the belated return to the appellant’s trial defense team of an assigned military defense counsel, who had been excused by the military judge, with the consent of the appellant, from attendance at preliminary court-martial proceedings, and the formulation of new trial tactics for the defense. These factors, in my mind, simply do not rise to the level of a sufficient change of conditions to undermine the previous informed and intelligent waiver of trial by members made by the appellant on the advice of his civilian and individual military counsel. See United States v. Wright, 5 M.J. 106 (C.M.A.1978).