(concurring):
I agree fully with the majority opinion. Although a court-martial lacks the permanence of a Federal District Court, it does have some continuity and does not change with every variation in the membership of the court. Thus, if a convening authority refers a case for trial by a court-martial which he has appointed, he does not have to refer the case again when a member is excused or replaced; despite the change in members, the court-martial remains the same. Moreover, the language of Article 29, Uniform Code of Military Justice, 10 U.S.C. § 829, which deals with “Absent and additional members,” makes clear that Congress never contemplated that a “new” court-martial exists after there has been a change in the members. Finally, I note that the interpretation which Judge Cook gives to paragraph 11c of the Manual for Courts-Martial, United States, 1969 (Revised edition), seems fully consistent with the interpretations given to Fed.R.Crim.P. 43-on which the Manual provision is patterned. See, e.g., United States v. Smith, 524 F.2d 167 (4th Cir. 1975), cert. denied, 424 U.S. 925, 96 S.Ct. 1136, 47 L.Ed.2d 334 (1976); United States v. Tortora, 464 F.2d 1202, 1208 (2nd Cir. 1972), cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972); United States v. Gregory, 463 F.2d 600 (1st Cir. 1972), cert. denied, 409 U.S. 956, 93 S.Ct. 300, 34 L.Ed.2d 225 (1972).