(dissenting);
I dissent. I have no reason to doubt the honesty or sincerity of the challenged member’s disclaimers on voir dire. Moreover, I concur with the majority’s observation that these factors should be weighed and resolved by the trial judge. What concerns me, however, is the reasonableness of those disclaimers in view of the challenged member’s close duty relation to two of the theft victims and his duty responsibilities as chairman of the base resource protection committee.
The challenged member might reasonably be expected to disregard those duty considerations for purposes of determining guilt or innocence, but I find it unreasonable to conclude he could disregard them for purposes of determining an appropriate sentence. Certainly the appearance of evil is great, and there is no indication in the record that there was a shortage of potential court members who were free of such obvious conflicts. Thus, I conclude that the military judge abused her discretion in denying the challenge for cause.
In assessing the impact of this error, I note, as pointed out in the majority opinion, that there are divergent lines of military case law concerning the effect of the exercise of the defense peremptory challenge following an improper denial of a challenge for cause.1 A similar divergence of opinion *593may be found among civilian jurisdictions. See, 47 Am.Jur.2d, Jury, § 218.
As an alternate basis for its decision today, the majority would rely upon those cases which hold that any prejudice to the accused by virtue of the improper denial of the challenge for cause is obviated by the removal of that member upon defense peremptory challenge. I cannot agree, because in my view, although the accused could no longer be prejudiced by the presence of the challenged member on the court, he was prejudiced by impingement upon his statutory right to the free exercise of one peremptory challenge. Article 41(b), Uniform Code of Military Justice, 10 U.S.C.A. § 841(b).
It may well be that the accused would not otherwise have used his peremptory challenge, but such a conclusion would be sheer speculation on our part.2 I believe we must assume, therefore, that the accused’s exercise of his peremptory challenge was not the unfettered product of his free will, but rather that it was occasioned by, and flowed directly from, the erroneous denial of the challenge for cause.
As stated by Mr. Justice Harlan in Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894):
The right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused. “The end of challenge,” says Coke, “is to have an indifferent trial, and which is required by law; and to bar the party indicated of his lawful challenge is to bar him of a principal matter concerning his trial.” He may if he chooses, peremptorily challenge “on his own dislike, without showing any cause;” he may exercise that right without reason or for no reason arbitrarily and capriciously. Any system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned. [Citations omitted.]
Id. at 408, 14 S.Ct. at 414. Having been denied the unrestricted exercise of his statutory right, the accused has suffered prejudice, despite the absence of the challenged member on the court which sentenced him.3 United States v. Stewart, 6 C.M.R. 432, 436 (A.B.R.1952), rev’d on other grounds, 2 U.S. C.M.A. 78, 6 C.M.R. 78 (1952).
Moreover, since the accused was restricted in the exercise of his statutory right to exercise a peremptory challenge, the court which sentenced him was improperly constituted. Thus, although the findings of guilty are unaffected, there is no valid sentence. Cf., United States v. Cameron, 13 C.M.R. 738 (A.F.B.R.1953). Accordingly, I would set aside the sentence and order a rehearing thereon.
. Footnote 4, ante. It should be noted that Judge Cook’s concurrence in United States v. Boyd, 7 M.J. 282 (C.M.A.1979), was in result only. For the purpose cited by the majority here, Judge Cook’s opinion took issue with the implication in Chief Judge Fletchei ■ opinion that, had the denial of the challenge for cause been improper, the error would have survived the accused’s peremptory excusal of the member. Indeed, the granted issue involved an allegation of “compelled” use of the defense peremptory challenge. Moreover, with all due respect to Judge Cook, the precedent cited by him considered this issue only as an alternative *593basis for its decision. Specifically in United States v. Shaffer, 2 U.S.C.M.A. 75, 6 C.M.R. 75 (1952), the Court never found that the challenge against the court member should have been sustained — it merely found that the procedure employed in denying the challenge was erroneous. In a companion case, United States v. Stewart, 2 U.S.C.M.A. 78, 6 C.M.R. 78 (1952), a similar error was also found non-prejudicial even though the challenged member actually served on the accused’s court-martial.
. The defense is not required to, and rarely does, accompany its exercise of the peremptory challenge with a statement of rationale. Paragraph 62e, Manual for Courts-Martial, 1969 (Rev.). Where the defense fails to exercise its right to one peremptory challenge, the doctrine of waiver might well be applied to the denial of a single challenge for cause in a non-capital case. See United States v. Henderson, 11 U.S. C.M.A. 556, 29 C.M.R. 372 (1960), at 308 (Ferguson, J., dissenting).
. Cf., Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708 (1887) (no prejudice to accused by erroneous denial of a challenge for cause where he had other peremptory challenges available). Unlike most civilian jurisdictions, in the military, the accused is entitled to only one peremptory challenge. Article 41(b), Uniform Code of Military Justice. Thus, once he uses it against any member, he preserves his right to challenge on appeal the denial of any challenge for cause. United States v. Watkins, 20 C.M.R. 750 (A.F.B.R.1955).