dissenting:
I disagree with the majority opinion in two respects. One, I understand the law to preclude use of rank as a device for deliberate and systematic exclusion of qualified court members. Secondly, I find the convening authority’s exclusions to demonstrate a reasonable relationship to the requirements of the law.
Every method of selecting jurors involves a choice that will exclude part of the general community and beyond the specific statutory exclusions, a method of selection which leaves out part of those normally within the scope of eligibility is not necessarily unlawful. United States v. Crawford, 35 C.M.R. 3 (CMA 1964). In United States v. Daigle, 1 M.J. 139 (CMA 1975), the Court of Military Appeals held “[wjhen rank is used as a device for deliberate and systematic exclusion of qualified persons, *918it becomes an irrelevant and impermissible basis for selection.” (Emphasis supplied.) Id. at 141. To me, the word “systematic” implies, in clear language, a requirement of evidence of a system in order to find a “systematic” exclusion; in this case, I find no such evidence. To be clear, if a decision is made to systematically exclude a class, even the first case would properly be subject to reversal. However, as a practical matter, such allegations are almost always supported by statistical evidence of a policy to exclude. United, States v. Crawford, 35 C.M.R. 3. My research indicates only one reported case, United States v. Greene, 42 C.M.R. 72 (CMA 1970), where the selection of members was reversed on the grounds of improper exclusion in a single case. I find that case distinguishable from the instant case in that in Greene the Court of Military Appeals was condemning the practice of “packing” a court with senior officers; such is not the case here.9
Indeed, the military judge, after receiving evidence, hearing the witnesses and counsels’ arguments on this matter, found that the convening authority, aware of his option to use other officers, felt that using officers of the grade of majors and above was a classification reasonably calculated to obtain members as required by the Uniform Code of Military Justice. Appellant’s prominence at Fort Leonard Wood, the number of captains ineligible to sit because of duty position, and the fact that appellant’s wife was an officer working in the Medical Department Activity at Fort Leonard Wood, all tend to support the ruling of the military judge. In the absence of an abuse of discretion on his part, which I do not find, the military judge’s ruling should not be overturned.
Although the action taken in the majority opinion negates the need to examine and discuss the appellant’s remaining assigned errors and those raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (CMA 1982), some additional comment is appropriate as regards multiplicity.
Appellant contends, the government concedes, and I agree that Charges II, III and V, and their specifications (larceny, filing a false claim, and making false statements) are multiplicious with Charge IV and its specifications (conduct unbecoming an officer based on the same offenses). United States v. Timberlake, 18 M.J. 371 (CMA 1984); United States v. Rodriguez, 18 M.J. 363 (CMA 1984). However, I am satisfied appellant has suffered no prejudice as to sentence.
Accordingly, I would set aside and dismiss the findings of guilty of Charges II, III and V and their specifications and affirm the remaining findings of guilty and the sentence.
. There is absolutely no evidence of any attempt by either the staff judge advocate or convening authority to "pack” the court.