concurring:
This case presents an issue that the Court of Military Appeals did not have to face in United States v. Salley, 9 M.J. 189 (C.M.A.1980), with regard to the reasonable doubt instruction. In that case, where there was no objection to the instruction and no re*527quest for clarification, the Court of Military Appeals condemned the instructional reference to “substantial doubt” and stated it should be avoided in the future. The Court, recognizing in its precedents and in those of the federal courts, a “reluctance to reverse because of the use of the instruction-at least absent an objection by defense counsel or a request for clarification” stated that they could not “conclude that the appellant was prejudiced by the reference to substantial doubt.”
In the instant case the trial defense counsel objected to the standard instruction which used the word “substantial”, proposing a substitute instruction that avoided the word. He also proposed a definition of reasonable doubt based on paragraph 74a (3), Manual for Courts-Martial, United States, 1969 (Revised edition), to the effect that the evidence must be such as to “exclude every fair and reasonable hypothesis or theory of innocence.” Therefore, I agree with Judge Garn that on the state of the evidence here the military judge erred to the prejudice of the appellant in giving the objectionable instruction and in not giving the requested instruction. United States v. Mason, 8 U.S.C.M.A. 329, 24 C.M.R. 139 (1957); United States v. Offley, 3 U.S.C.M.A. 276, 12 C.M.R. 32 (1953).
I believe there are several other errors that warrant discussion and, as will be indicated, corrective action upon any rehearing.
I
The appellant renews his attack first raised below on the procedure used in selecting and replacing court members. The procedure utilized at Fort Lewis, as indicated from the evidence in the hearing on the motion, was as follows: The Staff Judge Advocate requested nominees for court membership from the major subordinate commands. The commands were to use the criteria contained in Article 25(d)(2), Uniform Code of Military Justice, 10 U.S.C. § 825(d)(2), in making their nominations. The Chief Trial Counsel and Chief, Criminal Law section in the Staff Judge Advocate’s office then, using the Form 2s and 2-ls, “culled through” the list of nominees and made recommendation for certain members to be on certain panels (two general court-martial panels and three special court-martial panels). The Staff Judge Advocate submitted these recommended lists to the convening authority who, using the criteria of Article 25(d)(2), UCMJ, approved the lists as constituted. It is clear that he was aware that he could make any changes he deemed necessary.1 When a member was excused by the convening authority, either permanently or for one or more cases only, it became the duty of the trial counsel to nominate a replacement. In this case the replacements were obtained from three sources: (1) from the membership of another panel previously selected, (2) from a nomination by the command of a member being excused, and (3) from the local organizational and staffing chart listing officers. The trial counsel used availability as his sole criterion in making recommendations but the convening authority again used the criteria of Article 25(d)(2), UCMJ, in making his personal selection. The convening authority also personally designated the panel to which this case was to be referred.
It is obvious that the Staff Judge Advocate and his assistants at Fort Lewis were aware of the requirement of United States v. Ryan, 5 M.J. 97 (C.M.A.1978), and United States v. Kemp, 22 U.S.C.M.A. 152, 46 C.M.R. 152 (1973), for they scrupulously insured that the convening authority made all selection, replacement, and referral decisions personally. The use of the convening authority’s staff and subordinate commanders in compiling nominations and making recommendations was also necessary and proper. By involving the Chief Trial Counsel in the “culling” process and the Trial Counsel in the replacement scheme, however, the authorities needlessly injected an appearance of evil into the procedure that should have been avoided. There is no place for the use of partisan government *528advocates in the sensitive area of selection of court members. The practice should be terminated forthwith. It is only through the searching examination at trial of two of the participants in the procedure that I am satisfied that the selection process was fair and without prejudice to the appellant.2
II
The appellant contends that the Article 32 investigation was defective because the investigating officer without notice to or the presence of the defense counsel received advice from three different officers in violation of the principles announced in United States v. Payne, 3 M.J. 354 (C.M.A. 1977). The issue was litigated fully below and the military judge denied appellant’s motion for a new Article 32 investigation.
The Article 32 investigating officer spoke with the Legal Advisor to the subordinate command where this case arose on several occasions. The Legal Advisor had interviewed the witnesses, reviewed the CID report, drafted the charges, recommended the appointment of the investigating officer, and advised the Summary Court-Martial convening authority. His contacts with the investigating officer concerned only procedural matters. When the investigating officer tried to bring up substantive matters, the Legal Advisor always declined to discuss them.
Substantive matters were discussed with the Chief, Criminal Law section of the Staff Judge Advocate office. The defense counsel was not notified and was not present. This was error.
The Article 32 investigating officer also spoke with the Staff Judge Advocate but this concerned only an administrative matter, his difficulty in assembling the parties for a hearing. The Staff Judge Advocate’s advice was correct and in no way needed to involve the defense counsel.
Although there was a violation of Payne, as indicated above, the extensive questioning of the parties involved rebutted the presumption of prejudice to the accused from the ex parte consultation with the Chief of the Criminal Law section.3 No new investigation was required.
III
The trial defense counsel requested a verbatim transcript of the testimony of the three witnesses at the Article 32 investigation. As such a transcript was not required and one was not made, the military judge properly treated the request as one for production of the tapes. I think he erred in denying the appellant’s request.
The Court of Military Appeals has long held that the Jencks Act4 is applicable to courts-martial. United States v. Jarrie, 5 M.J. 193 (C.M.A.1978); United States v. Albo, 22 U.S.C.M.A. 30, 46 C.M.R. 30 (1972). The Court has not, however, applied the act to the production of the tapes of an Article 32 investigation. This Court in United States v. Burrell, 5 M.J. 617 (A.C.M.R.1978), did not have that question before it and therefore left the issue open. Subsequently, this Court in United States v. Thomas 7 M.J. 655 (A.C.M.R.1979), and the Air Force Court of Military Review in United States v. Scott, 6 M.J. 547 (A.F.C.M.R.1978), concluded that the Jencks Act applied to the testimony given at an Article 32 investigation. I believe those cases correctly resolve the issue. The judge should have required production of the tapes. Because of the disposition of the case on the instructional issue, however, it is unnecessary to determine if sanctions need be imposed.
IV
I agree with Judge Garn that the remaining errors assigned require no discussion or *529corrective action. However, I want to commend counsel at the trial below and counsel before us on appeal for their work in this case. Rarely do I find a case as well litigated or as well briefed on appeal.
. Although submission of only the precise number of names to be selected is not error, I believe it better practice to submit the entire list of nominees.
. The trial counsel testified that he disliked the procedure and emphasized that he accomplished the task in a “mechanistic” way, obviously to insure there was no partisanship.
. I reaffirm the views expressed in my concurring opinion in United States v. Grimm, 6 M.J. 890 (A.C.M.R.1978), concerning the status of the Article 32 investigating officer and the need for an adversary proceeding in order to obtain legal advice.
. 18 U.S.C. § 3500.