(dissenting):
I dissent. In this case appellate Government counsel has moved to set aside the findings and sentence, authorizing a rehearing, because the accuser was the reporter. I agree with the accused and the Government that the decision of the Court of Military Appeals in United States v. Moeller, 8 U.S.C.M.A. 275, 24 C.M.R. 85 (1957), requires this result.
In Moeller, the Court held that assignment of a nominal accuser as reporter is an error of sufficient moment to warrant reversal of the findings and sentence. See also United States v. Martinez, 11 U.S.C.M.A. 224, 29 C.M.R. 40 (1960); United States v. Tucker, 9 U.S.C.M.A. 587, 26 C.M.R. 367 (1958). I realize that in Moeller, the accuser/reporter also acted as adviser to the members while they were deliberating on sentence and failed to record the proceedings that occurred while he was present in the closed session. The Court, however, noted that these irregularities affected only the sentence. The stated basis for reversal of the findings was not these irregularities, but the Court’s grave concern over the appointment of the nominal accuser as reporter. There is nothing in the opinion in Moeller to indicate that the error is waived if the accused is represented by lawyer counsel who does not object. Cf. United States v. Martinez, supra, (general court-martial conviction reversed where actual accuser was interpreter at taking of deposition, although defense counsel knew this and did not object to its introduction).
I assume for the purpose of this appeal that the reporter was merely the nominal accuser and not the accuser-in-fact, although this has not been established. As the Court pointed out in Moeller, in many instances it is impossible on appeal to ascertain the true status of the accuser without a post-trial hearing. An ostensibly nominal accuser may have gathered evidence and drafted charges, thereby making the charges his handiwork. See United States v. Cunningham, 12 U.S.C.M.A. 402, 30 C.M.R. 402 (1961). The potentialities for harm to the system are great if one who appears on the record as an accuser is the reporter, a functionary who can be a key party to the preservation of the' rights of the accused. United States v. Moeller, supra. Nevertheless, I find the doctrine of waiver attractive where the reporter is a nominal accuser and the accused is represented by lawyer counsel. Cf. United States v. Tagert, 11 M.J. 677 (N.C.M.R.1981). But, in light of the holding in Moeller, this Court does not write upon a clean slate. Thus, in a recent case, which cannot be distinguished from this case, another panel, citing United States v. Moeller, reversed the findings and sentence, because the accuser was the reporter. United States v. Moffett, No. 81 1694 (N.M.C.M.R. 24 June 1981) (order). The holding of Moeller is that it is reversible error per se when the nominal accuser acts as reporter. If the time is ripe for overruling that holding, the Court of Military Appeals should do so, but this Court should not attempt to overturn Moeller. United States v. Heflin, 1 M.J. 131, 132, n.6 (C.M.A.1975). I decline to join the majority in distinguishing this case from Moeller or limiting Moeller when such distinctions and limitations are not warranted by the opinion in that case.
I would grant the Government’s motion to set aside the findings and sentence, authorizing a rehearing.