(dissenting):
I must dissent. It is uncontroverted in the record of trial that the appellant was represented by civilian counsel as well as the associate military defense counsel at his court-martial. See Article 38(b), Uniform Code of Military Justice. In addition, the record of trial indicates the name of this counsel, and the address of his place of business in Killeen, Texas, which is considerably closer to the situs of trial at Fort Hood, Texas, than West Point, New York. Yet, as indicated in the majority opinion, the record is silent as to service of the post-trial review on this counsel.
I do not believe our decision in United States v. Palenius, 2 M.J. 86, 93 (C.M.A. 1977) can be fairly construed to exclude, without reason, civilian counsel from the important post-trial responsibilities enumerated therein. In this case, there is no clear indication that the appellant knowingly and intelligently waived the performance of these duties by his civilian counsel. Moreover, the record shows no agreement between civilian counsel and his associate military counsel, with the consent of the appellant, that the military defense counsel would be entirely responsible for responding to the post-trial review. In such a situation, the agency theory relied on by the majority loses much of its persuasiveness. Likewise, I do not find that this new assistant defense counsel was acting under the lawful direction of the trial defense counsel in responding to this post-trial review.
The majority opinion indicates that since the appointed military defense counsel, who was transferred from the situs of trial, remained part of the defense team, it may be presumed, “in the absence of evidence to the contrary,” that he could properly submit comments or rebuttal to the post-trial review. However, I am concerned with the apparent summary excusal of the civilian defense counsel, by the convening authority and the new assistant defense counsel, from carrying out his specific duty in the post-trial review. Both cases cited by the majority, United States v. Nichelson, 18 U.S.C.M.A. 69, 39 C.M.R. 69 (1968), and United States v. Tavolilla, 17 U.S.C.M.A. 395, 38 C.M.R. 193 (1968), require some affirmative showing in the record of trial of the consent of the accused to the absence of counsel and condemn such speculation on this issue based on a silent record. Moreover, considering the proximity of the civilian defense counsel to the situs of trial in the present case, the record should clearly indicate the circumstances surrounding any purported devolution of duties from the ci*379vilian defense counsel to military associate counsel to any assistant counsel appointed after the court-martial. See paras. 6 and 47, Manual for Courts-Martial, United States, 1969 (Revised edition).
Accordingly, there has not been sufficient compliance with United States v. Goode, 1 M.J. 3, 6 (C.M.A.1975). The decision of the United States Army Court of Military Review should be reversed and the action of the convening authority set aside. I would return the case to the Court of Military Review for a new action after proper service of the post-trial review.