(dissenting):
I dissent from the Court’s holding that the requirements of United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969), were satisfied in this case.
Donohew requires that the record of trial contain the accused’s personal response to direct questions incorporating each of the elements of Article 38(b), Uniform Code of Military Justice (UCMJ), as well as his understanding of his entitlement thereunder. Article 38(b) provides that the accused has the right to be represented by the defense counsel detailed under Article 27(b), UCMJ, 10 U.S.C. § 827(b).
In this case the original convening order detailed Lieutenant Commander Mitchell. A subsequent amendment relieved Lieutenant Commander Mitchell and substituted Lieutenant Gibson. But, if the accused had formed an attorney-client relationship with the counsel originally detailed to represent him, that counsel could not be properly relieved without the consent of the accused, *711except for good cause. United States v. Eason, 21 U.S.C.M.A. 335, 45 C.M.R. 109 (1972); United States v. Murray, 20 U.S.C.M.A. 61, 42 C.M.R. 253 (1970). Therefore, under such circumstances in the absence of the informed consent of the accused or good cause for relief, the accused would still be entitled under Article 38(b) to be represented by his originally detailed counsel. Hence, advice by the military judge which does not apprise the accused of this right does not satisfy the Donohew requirement that he be advised of his entitlement under Article 38(b).
I am unwilling to rely on the presumption of regularity in order to conclude that either no attorney-client relationship was established between the accused and the originally detailed defense counsel or, if one was established, it was terminated for good cause or with the accused’s consent. Such a presumption is inappropriate in this area. There is no logical reason to presume that the accused was properly advised of his rights here, when the Court of Military Appeals specifically declined to indulge in the same presumption in Donohew in lieu of requiring a full statement on the record to eliminate uncertainty on appeal. Moreover, here, it is unreasonable to presume the convening authority would know whether an attorney-client relationship had been established when he substituted counsel.
Therefore, I cannot join the majority in overruling United States v. McGovern, 11 M.J. 582 (N.C.M.R.1981), which is factually indistinguishable from this case and correctly applies the law announced in Donohew. 1 This case should be remanded for additional proceedings to establish compliance with Donohew.
Senior Judge BAUM and Judge KERCHEVAL join in this dissent. Judges ABERNATHY, GORMLEY and MALONE (not participating).. In a line of cases typified by United States v. McGee, No. 80 3213 (NCMR 6 March 1981), this Court deviated from the requirements of Donohew. In McGee, in which the facts were similar to the case before the Court today, the inquiry and advice as to counsel rights was found to be adequate. Examination of McGee reveals that it was decided in mistaken reliance on United States v. Koren, 17 USCMA 513, 38 CMR 311 (1968), a case which antedated the Donohew decision. Koren is inapposite because Donohew makes clear that inquiry and advice which satisfy Koren do not satisfy the Donohew requirement. McGee also cited United States v. Otterbeck, 50 CMR 7 (NCMR 1974), which is distinguishable because the record established that an attorney-client relationship had never been formed.