concurring:
I concur with the result of this case reached by Senior Judge Fulton, but feel compelled to add a few thoughts of my own on the matter he raised in United States v. Rembert, 5 M.J. 910, 912-13 (A.C.M.R.1978) (Fulton, Sr.J., dissenting) and United States v. Arvie, 7 M.J. 768 at n. 11 (A.C.M.R.1979), and on which he continues to express concern here. Those who fashion the law must occasionally step back from this intricate work to insure the trueness of its direction. This is especially necessary where the workbench is judicial, the craftsmen judges and *966their raw materials cases. It is easy to build a warp into a work at its inception and only have the warp become clearly apparent as additional pieces are added. My brother has somehow travelled the distance from Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281,47 L.Ed.2d 556 (1976), which held that counsel was not required at a summary court-martial, to a point very close to reading United States v. Booker, 3 M.J. 443 (C.M.A.1977), which interprets Middendorf, as requiring consultation with a lawyer before the government can properly proceed with the lawyerless summary court-martial.1 If this interpretation of Booker is accurate, United States v. Mathews, 6 M.J. 357 (C.M.A.1979), would now also require lawyer consultation prior to proceeding under Article 15, Uniform Code of Military Justice, nonjudicial punishment. The time has come to step back and check for warps. I am confident from the language of Middendorf, the United States Supreme Court would not hold on constitutional grounds that the service member must be afforded the right to consult with a lawyer prior to his election of whether or not to proceed under Articles 15 or 20, Uniform Code of Military Justice.2 If such a right exists in the Army, it is regulatory in origin, not constitutional. In my view, the advice of right to counsel printed on Department of the Army Form 2627 is fully adequate and, in the absence of any evidence of the denial of the opportunity to exercise that right, I would find it waived.
. See United States v. Arvie, 7 M.J. 768 at n.11 (A.C.M.R.1979) and United States v. Rembert, 5 M.J. 910, 912-13 (A.C.M.R.1978) (Fulton, Sr.J., dissenting). Specifically, my brother would hold that any waiver of the right to consult with counsel must itself be established to have been knowing and intelligent. Clearly, what is a right of the individual in this context would be a requirement upon the government. It is this pyramiding of requirements to establish knowing and intelligent waivers that I resist. Indeed, one might next wonder whether a person can ever knowingly and intelligently waive the right to a lawyer without first talking to one.
. Interestingly, neither the Uniform Code of Military Justice nor the Manual for Courts-Martial, United States, 1969 (Revised edition), extends such rights, and it is only when we reach secretarial regulations that they first appear. Paragraph 3-12, Army Regulation 27-10, creates the right in Article 15 proceedings and, through paragraph 2-5 b of the same regulation, Department of the Army Pamphlet 27-7 may create such a right in summary courts-martial.