(dissenting):
Article 23(b) states, “If any such officer [referring to the list of eligible convening authorities in paragraph (a) of the Article] is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered advisable by him.” This language does not suggest that Congress was attempting to insulate an accused from the influence of all accusers who outrank the convening authority. Clearly, however, the language does insure that an accused’s case will not be convened by his accuser and that when his accuser would normally serve as convening authority in the case, the accused will be provided unique insulation from the potential indirect influence of that individual.
The essential holding in United States v. LaGrange, 1 U.S.C.M.A. 342, 3 C.M.R. 76 (1952), is neither inconsistent with the decision in United States v. Bloss, 11 M.J. 641 (A.F.C.M.R.1981), nor does it compel the decision reached by the majority in this case. The Court in LaGrange was not confronted with facts which required them to answer the question of whether Article 23(b), Uniform Code of Military Justice, applied to an officer who despite his statutory eligibility to be a convening authority, had, as a result of an Air Force directive, no authority to convene courts-martial. In fact, the Court quoted paragraph 5a(3), Manual for Courts-Martial, 1951, as follows:
“It is unlawful for an accuser to convene a general court-martial for the trial of the person so accused. When any commander who would normally convene the general court-martial is the accuser in a case, he shall refer the charges to a superior competent authority who will convene the court or designate another competent convening authority to exercise jurisdiction.” (Emphasis added. Italics in the Court’s opinion have been deleted.)
United States v. LaGrange, 3 C.M.R. at 77.* Referring to the above quoted paragraph, the Court stated that “the only real difference between the Article of the Code and the paragraph of the Manual” pertained to the substitution of the phrase “another competent convening authority” for the phrase “superior competent convening authority.” LaGrange, 3 C.M.R. at 78. It thus appears that the decision in La-Grange only pertained to a commander who would normally convene the case.
*809I perceive no clear legislative intent to specially insulate an accused from the possible influence of all officers who hold command positions or from his own commanding officer unless such person is both the accuser and has the authority to refer the charges for trial. Absent more evident legislative intent to the contrary, this court should follow its own precedent on this issue in United States v. Bloss, supra.
The fact that the impending Rule for Courts-Martial 504(c)(2), Manual for Courts-Martial, 1984, would lead to the same result as the majority opinion and also insulate the accused from the influence of all accusers who outrank the convening authority does not persuade me that such insulation is required by Article 23(b) itself.
Having resolved the other assignments of error adverse to the accused, I would affirm.
The Court noted that this same language was . made applicable to special courts-martial by paragraph 5b(2), M.C.M., 1951. Paragraphs 5a(3) and 5a(2) of the 1969 Manual are substantially the same as they were in the 1951 Manual.