(dissenting):
I dissent because I conclude that the military judge committed prejudicial error by giving the accused erroneous and misleading advice on his rights to counsel.
The judge advised the accused that, if an individual military counsel were made available to represent him, his detailed defense counsel “would be automatically excused and he wouldn’t participate further.” He did not advise him that if he were represented by individual military counsel, the convening authority could in his sole discretion approve a request from the accused that detailed counsel act as associate defense counsel. In response to the judge’s queries the accused then stated that he would not request individual military counsel and that he was satisfied to be represented by his detailed defense counsel and no one else.
Article 38(b), Uniform Code of Military Justice, 10 U.S.C. § 838(b), originally provided:
The accused shall have the right to be represented in his defense before a general or special court-martial by civilian *739counsel if provided by him, or by military counsel of his own selection if reasonably available, or by the defense counsel duly appointed pursuant to article 27. Should the accused have counsel of his own selection, the duly appointed defense counsel, and assistant defense counsel, if any, shall, if the accused so desires, act as his associate counsel; otherwise they shall be excused by the president of the court.
There were no significant changes to the statute until Article 38(b) was amended by the Military Justice Amendments of 1981, Pub.L. No. 97-81, § 4(b), 95 Stat. 1085, 1088 (1981) (codified as amended at 10 U.S.C. § 838(b) (1981)) to provide in pertinent part:
(b)(1) The accused has the right to be represented in his defense before a general or special court-martial or at an investigation under section 832 of this title (article 32) as provided in this subsection.
(2) The accused may be represented by civilian counsel if provided by him.
(3) The accused may be represented—
(A) by military counsel detailed under section 827 of this title (article 27); or
(B) by military counsel of his own selection if that counsel is reasonably available (as determined under regulations prescribed under paragraph (7)).
(4) If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate counsel unless excused at the request of the accused.
(5) Except as provided under paragraph (6), if the accused is represented by military counsel of his own selection under paragraph (3)(B), any military counsel detailed under paragraph (3)(A) shall be excused.
(6) The accused is not entitled to be represented by more than one military counsel. However, a convening authority, in his sole discretion—
(A) may detail additional military counsel as assistant defense counsel; and
(B) if the accused is represented by military counsel of his own selection under paragraph (3)(B), may approve a request from the accused that military counsel detailed under paragraph (3)(A) act as associate defense counsel.
In United States v. Donohew, 18 U.S.C. M.A. 149, 39 C.M.R. 149 (1969), the Court of Military Appeals required that the records in future cases contain the accused’s personal response to direct questions incorporating each of the elements of Article 38(b), as well as his understanding of his entitlement thereunder. In many of the earlier ensuing cases the Court held that failure to comply literally with this requirement was reversible error and did not test for prejudice. See United States v. Carter, 20 U.S.C.M.A. 146, 42 C.M.R. 338 (1970) and United States v. Bowman, 20 U.S.C.M.A. 119, 42 C.M.R. 311 (1970). See also the cases cited in footnote 9 of the majority opinion. Later, however, the Court treated the failure as an error which must be tested for prejudice. See United States v. Whitmire, 21 U.S.C.M.A. 268, 45 C.M.R. 42 (1972) (failure of the trial judge to question the accused directly and obtain his personal response as to his knowledge and understanding of the right to individual military counsel was not prejudicial error where the record demonstrated that the accused knew of this right).
In United States v. Turner, 20 U.S.C. M.A. 167, 43 C.M.R. 7 (1970), the Court of Military Appeals held that when an accused has categorically answered no to a question whether he desired civilian counsel and expressed no interest in civilian counsel, the military judge does not err in failing to advise him that if he retained civilian counsel, his detailed counsel could continue to function as an associate counsel. The Court noted that this aspect of knowledge about rights to counsel had not inspired Donohew, the basic objectives of which were the assurances that the accused know of his rights to retain civilian counsel or to select a military counsel different from the one detailed to him. The Court regarded the possibility that the accused would have *740retained civilian counsel if the judge had informed him he would not lose his detailed counsel as being so remote that reversal was not justified. Id.
In United States v. Copes, 1 M.J. 182 (C.M.A.1975), the Court held that erroneous and misleading advice by the judge concerning the accused’s right to individual military counsel is prejudicial error, even though the accused states that he desires to be represented by detailed counsel, if it cannot be determined from the record what choice the accused might have made had he been given proper advice as required by Donohew, supra. Also see United States v. Jorge, 1 M.J. 184 (C.M.A.1975) (failure to advise an accused represented by individual military counsel that he had the option to be represented by civilian counsel rather than individual military counsel was held to be prejudicial error because the Court could not determine what choice the accused would have made had he been given the required advice).
The rule to be gleaned from the applicable precedents is that incomplete, erroneous, or misleading advice to an accused on his rights to counsel under Article 38(b) is prejudicial error, if it cannot be determined from the record what choice the accused would have made had he been given the proper advice.
The issue is whether, under the circumstances of this case, the military judge’s advice to the accused on his rights was incomplete, erroneous, or misleading. If it was not, further inquiry is unnecessary. If it was, the error must be tested for prejudice.
The advice of the judge to the accused that if he were represented by individual military counsel, his detailed defense counsel would be automatically excused and not participate further in the case was patently erroneous and misleading. It is contrary to the plain language of Article 38(b), which provides that a convening authority in his sole discretion may approve a request from an accused represented by individual military counsel that detailed counsel act as associate counsel. In context the advice leads to the inescapable conclusion that, if the accused were represented by individual military counsel, he could under no circumstances have his detailed counsel act as associate counsel. See United States v. Vasquez, 19 M.J. 729 (N.M.C.M.R. 1984). Plainly and simply, the judge’s advice here was erroneous. It does not matter that the accused did not have an unqualified right to retain detailed counsel or that an argument can be made that the convening authority’s discretion to approve a request to retain detailed counsel is not an essential element of Article 38(b). The advice is still erroneous and the error must be tested for prejudice.
This is not a case in which the accused stated before he received erroneous and misleading advice that he did not desire to be represented by individual military counsel. Cf. United States v. Turner, supra. Here the accused received the erroneous advice before the judge asked if he desired to be represented by individual military counsel. Under the circumstances of this case, I cannot determine from the record what choice the accused would have made had he not received the erroneous advice. Therefore, I would remand the case for a limited hearing to establish the accused’s understanding of his rights. See United States v. Barnes, 21 U.S.C.M.A. 169, 44 C.M.R. 223 (1972) (a proceeding in revision may be used to establish compliance with the Donohew requirement). Accordingly, I dissent.
Judges MAY * and RAPP join in the dissent.