(dissenting):
I dissent because the majority’s conclusion that reversal is not required where the accuser was the court reporter is contrary to the holding of the U.S. Court of Military Appeals in United States v. Moeller, 8 U.S.C.M.A. 275, 24 C.M.R. 85 (1957). See my dissent in United States v. Gloria, 12 M.J. 518 (N.M.C.M.R.1981).
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. In United States v. Martinez, 11 U.S.C.M.A. 224, 29 C.M.R. 40 (1960), the Court reiterated its holding in Moeller and, rejecting the doctrine of waiver, applied the holding in an analogous situation, even though the *705accused had been represented by lawyer counsel who did not object at trial.1
The majority attempts to distinguish Moeller on the ground that the Court found other irregularities in the activities of the reporter than merely the fact that he was a nominal accuser. But the U.S. Court of Military Appeals noted that these irregularities in the sentencing procedure, standing alone, did not warrant reversal of the findings. The Court held that where the court reporter is the nominal accuser, there is an irregularity of sufficient moment to warrant reversal of the findings and sentence. United States v. Moeller, supra at 277, 24 C.M.R. at 87. Assuming that the reporter in this case was a nominal and not an actual accuser, the operative facts here are the same as those in Moeller. The majority chooses to distinguish Moeller on the basis of facts extraneous to the holding in that case because of its expressed dislike for a holding which it believes has outlived its usefulness. It is not, however, the function of an intermediate appellate court to overturn rules promulgated by a higher court, even if the intermediate court considers the rules to be misguided. Hutto v. Davis, - U.S. -, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam opinion); United States v. Heflin, 1 M.J. 131, 136, n.6 (C.M.A.1975).
Moreover, the rule enunciated in Moeller was subsequently prescribed by the President in paragraph 7, Manual for Courts-Martial, 1969 (Rev.) (Manual), promulgated when the Military Justice Act of 1968, Pub.L. 90-632, provisions requiring a military judge and lawyer defense counsel at most special courts-martial became effective. The Manual does not provide for waiver of this requirement although it does of other requirements.2 It ill-behooves this Court to disregard the rules promulgated by the President in the Manual.
Like the drafters of the Manual, I am not convinced that Moeller has outlived its usefulness. The Court, there, announced the policy that a nominal accuser should not be detailed as a reporter and held that violation of that policy was reversible error without a showing of prejudice. It noted that in many instances, it is impossible on appeal to ascertain the true status of the accuser without some sort of post-trial hearing. This case demonstrates the wisdom of that observation. The Government, here, resorted to a post-trial affidavit in its effort to show that the reporter was merely a nominal accuser. It is clear from his affidavit that the reporter was not a victim who had been injured by the accused’s misconduct, but the pretrial activities of an individual who is not a victim may render him an actual accuser. United States v. Martinez, supra. It is well known that at some law centers the nominal accuser is involved in gathering additional evidence if the service record book entries or other evidence accompanying the request for legal services is deficient. The affidavit, here, does not indicate whether the accuser in this case customarily engaged in such activities,3 but it does reveal that he drafted the charge. The work product of the accuser who drafts charges is the subject of scrutiny at trial, for the evidence in a not guilty plea case and the factual admissions of the accused in a guilty plea case must support those charges. An accuser who drafts charges has a natural interest in the vindication of his worksmanship.
The waiver provisions of the Federal Rules of Criminal Procedure and the Manu*706al, cited by the majority are inapposite.4 These deal with defects in preferral of charges and other pretrial proceedings. The irregularity, here, is not a pretrial defect, but an error which occurred at the commencement of and continued throughout the trial. Even if an error of this nature were waivable, this would not be an appropriate case to invoke waiver. There is no showing, here, that any of the parties was aware of the extent of the involvement of the accuser because it was not revealed at trial that he had drafted the charges.
The Court of Military Appeals held that as a matter of policy, it is reversible error when a nominal accuser acts as reporter, even though prejudice is not shown. By overturning this bright line rule designed to avoid appellate litigation and its attendant uncertainties, the majority is making courts-martial a guessing game although it condemns game playing. Adherence to Moeller is in the best interests of preservation of the integrity of the military justice system. Disregard of the higher Court’s holding is a step on the road to judicial anarchy which inevitably results when lower courts refuse to follow precedent they believe to be misguided. See Hutto v. Davis, supra. Therefore, I dissent.
Chief Judge CEDARBURG, Senior Judge BAUM, and Judges MAY and MALONE join in this dissent.
Judge MICHAEL (not participating)
. In Martinez, an officer whom the Court found to be an accuser-in-fact, although he did not prefer the charges, acted as an interpreter.
. Compare paragraph 7, Manual for Courts-Martial, 1969 (Rev.) (MCM) (no person may act as reporter in any case in which he is an accuser) with paragraph 29e, MCM (in no case may an accuser be tried on unsworn charges over his objection).
. I find it hard to believe that an accuser who received a report slip alleging both a short and lengthy unauthorized absence, with proper service record book entries establishing the former and defective entries purporting to support the latter, would draft a specification alleging the first absence and none alleging the second, rather than requesting proper entries to support a second specification for the lengthy absence.
. See nn. 10 and 12 (majority opinion).