(dissenting):
Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, contemplates that a Court of Military Review may sit in panels and that the Chief Judge of that court shall determine the membership of those panels. Consistent with this Article, the “Internal Operating Procedures” of the Army Court of Military Review provide that each case shall be assigned to panels of the court “at the direction of the Chief Judge, on a random rotating basis except as provided for below,” Final Draft, p. 1-4 (April 25,1977); and, unless reassigned, the case is decided by that panel. Because of the error made in the processing of appellant’s case, these procedures were violated, and his case was not decided by the judges to whom it had been assigned.
Although I agree with the principal opinion that this error was not jurisdictional, I do attribute a prejudicial effect to it. Indeed, in my view it impaired appellant’s right to appellate counsel granted by Article 70 of the Code, 10 U.S.C. § 870. This impairment resulted because, to allow Vines’ case to be decided by a panel other than the one which his appellate defense counsel had been advised would do so, prevented his counsel from representing him properly.
When an appellate advocate learns the identity of the judges who will consider his client’s case,1 he considers whether there is any reason why one or more of those judges may be disqualified from participating in such review. For appellate military judges, grounds of disqualification are stated by Article 66(h) of the Code. See also United States v. Kincheloe, 14 M.J. 40 (C.M.A. *2511982). However, in the present ease appellate defense counsel were deprived of the opportunity to seek recusal of any of the judges who decided appellant’s case, for they were misinformed as to which panel would perform the appellate review.
Furthermore, since appellate judges are not fungible, a competent appellate advocate usually seeks to tailor his brief and oral argument to the particular judges who will consider his appeal. See, e.g., Causey, “Practical Suggestions for the Appellate Lawyer,” 29 Fed.Bar News and Journal 462 (Dec. 1982); Everett, “Persuasive Appellate Advocacy,” 29 Federal Bar News and Journal 469 (Dec. 1982); Re, Brief Writing and Oral Argument 191-92 (4th Rev.Ed.1977). A decision whether to waive oral argument may also be influenced by the membership of the panel of judges which will consider the appeal. In the present case, appellant’s counsel were denied the opportunity to make such evaluations by the misadvice they received as to who actually would decide the case.
No military exigency justifies such a departure from customary procedure. Indeed, the slipshod handling of appellant’s case tends to diminish the stature of the Court of Military Review and tarnishes the image of military justice. I do not wish even indirectly to condone the error that has taken place in this case by affirming the decision of the court below. Moreover, unlike the principal opinion, I can readily discern a “practical solution.” That solution would be to set aside the decision of the wrong panel and remand to the Army Court of Military Review for reassignment to whatever panel might be directed by the Chief Judge of that court, pursuant to its Internal Operating Procedures. Moreover, I would direct that appellate defense counsel be allowed a reasonable opportunity to file any motions or supplemental briefs or to make any request for oral argument that they may consider appropriate in light of the remand of the case.
. During oral argument we were informed that under the usual procedure of the Army Court of Military Review appellate defense counsel are advised of the panel to which a case is assigned at about the time of the assignment.