dissenting:
Pursuant to his clear-cut statutory right,1 this appellant, facing serious court-martial charges in Germany, retained civilian counsel from his native state of Maine. In addition, he also elected to be represented during the entire proceedings by military counsel detailed by the convening authority. Accordingly, at the Article 32 investigation (Article 32, UCMJ, 10 U.S.C. § 832), and throughout the trial, the appellant was represented by his civilian counsel, recognized by all parties as Chief Counsel, and detailed military counsel, recognized by all parties as the Assistant Defense Counsel.2 Because of the Chief Counsel’s other commitments and due to the length of investigation and trial proceedings, it became necessary for the Chief Counsel to make two separate round trips from Maine to Germany, which obviously resulted in considerable expense for appellant. It is abundantly evident from the record that all the foregoing facts were well-known to the staff judge advocate’s office. Furthermore, the record contains no document or other evidence reflecting that the Chief Counsel, who had then returned *541to Maine, in any way delegated, waived, relinquished, or released his position of Chief Counsel to his detailed military assistant. Rather, an affidavit from the Chief Counsel, executed subsequent to the convening authority’s action, plainly states that such a transfer of authority was never effected. Nevertheless, a copy of the staff judge advocate’s review prepared in accordance with Goode,3 although addressed to the Chief Counsel by name, was served only on Assistant Defense Counsel who presumably was collocated with the staff judge advocate office. After some two days this individual acknowledged receipt of the review by signing his name under the typed name of the Chief Counsel4 and stated he had nothing to submit in rebuttal. In this regard, the record is absolutely silent of any communication or attempted communication by the Assistant Defense Counsel with the Chief Counsel, nor is there any specific showing of his authority to act for the Chief Counsel.
From the available facts and looking at the situation from the appellant’s vantage point, I am satisfied he was short-changed in his post-trial representation. Surely under the unique facts of this case and particularly since there was no threat of a Dunlap5 error, the Government with a minimum of effort and expense could have dispatched an additional copy of the review to the Chief Counsel in Maine. Such service on both counsel has been preferred as the better practice since the 1978 decision of United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.1978) (Perry, concurring). The staff judge advocate as well as assistant Defense Counsel presumably are on notice of this preferred practice and should have followed it. What alarms me is that appellant suffers potential harm from the procedure utilized in this case. In effect without his knowledge and consent, a possible rebuttal to the staff judge advocate review has been sacrificed, a precious right because as the Goode court recognized an accused’s best opportunity for clemency rests at the convening authority level. As Chief Judge Fletcher opined in the dissent in Jeanbaptiste,
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. .
In summary, I find that the appellant’s fundamental right to an unfettered choice of counsel, a grant founded on the Sixth Amendment of the United States Constitution, has been denied. Appellant has obviously paid dearly for this right and is entitled to full representation after trial. See United States v. Palenius, 2 M.J. 86 (C.M.A. 1977) . This right far outweighs any government convenience or economy and in my judgment the omission of service of the post-trial review and the record of trial on Chief Counsel was prejudicial error. See United States v. Davis, 5 M.J. 451 (C.M.A. 1978) ; United States v. Ray, 6 M.J. 60 (C.M.A.1978). I would set aside the action of the convening authority and direct further proceedings pursuant to Goode.
. Article 38(b), Uniform Code of Military Justice, 10 U.S.C. § 838(b), [hereinafter UCMJ]; paragraph 48a, Manual for Courts-Martial, United States, 1969 (Revised edition).
. In United States v. Tavolilla, 17 U.S.C.M.A. 395, 38 C.M.R. 193, 197 (1968), the Court of Military Appeals stated, “[I]n civilian practice, assistant counsel is subject to the direction and control of chief counsel The military practice is the same. Article 27 [10 U.S.C. § 827], . clearly contemplates the primacy of authority and responsibility of defense counsel in relation to assistant defense counsel. Explicit recognition of his superior position appears in the Manual . . paragraph 47.” See also United States v. Maness, 23 U.S.C.M.A. 41, 48 C.M.R. 512 (1974).
. United States v. Goode, 1 M.J. 3 (C.M.A. 1975).
. There are no words of agency or authority such as “for” or “acting for” or “on behalf of.” Paragraph 46d, MCM, 1969 (Rev.), provides in pertinent part: “When the defense is in charge of individual counsel, civilian or military, the duties of defense counsel as associate counsel are those which the individual counsel may designate.”
. Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (C.M.A.1974).