(concurring in the result):
I write separately simply because I feel that the principal opinion does - not completely answer the certified question. I do agree that an Article 38 1 inquiry is necessary, and I concur in my Brother’s analysis of the case and the result he has reached.
The question certified to this Court is whether the court below incorrectly failed to apply the “harmless-error” review specified by Article 59(a) of the Uniform Code of Military Justice.2 The applicability of such a review to this and to guilty-plea inquiries obviously has troubled the United States Navy-Marine Corps Court of Military Review. See United States v. Jerasi, 20 M.J. 719 (N.M.C.M.R.1985); United States v. Frazier, unpublished (NMCM 84-3167-October 24, 1984).
The Court of Military Review’s decisions in Jerasi and Frazier evince concern that this Court is “elevatpng] form over substance,” (United States v. Johnson, unpublished (NMCM 84-2189-September 21, 1984)); that the Court is “paternalistic” (i.e., “we do not possess the judicial power to dismantle the relic of paternalism,” United States v. Jerasi, supra at 731); and that such requirements are “an anachronism that should be abandoned,” 21 M.J. at 214, construing United States v. Jerasi, supra.
These same criticisms have also been leveled at the Care inquiry,3 the Grostefon rule,4 and other rules created by this Court over the years. Initially I, too, was troubled by what seemed to be technical rules. I believed, as did a majority of the court below, that the presence of trained and certified lawyers at every stage of the proceedings obviated the need for such undue paternalism. However, my initial view has softened, and I now feel that there are sound reasons to adhere to the so-called paternalistic rules.
One important reason to insist that military judges build a complete record is to insure that our military justice system continues to operate with the highest standards and is a model of justice in the field of criminal law. It is far more difficult for an accused to complain of unfair or unjust treatment when the record of trial clearly indicates that he understood each and every allegation against him; that he understood each and every right he had at each stage; that he knowingly and consciously waived any of those rights; and that, when appropriate, he acknowledged his own belief in his guilt. Without a complete record to perpetuate these matters, the military justice system is vulnerable to the allega*217tion that it is a system of “drumhead justice.”
A second, yet equally important, reason to adhere to these practices is to avoid prolonged litigation. One need only look at the proliferation of prisoner lawsuits in the state and federal courts to understand quickly why a complete trial record is crucial. Much of this litigation would not be necessary if the trial judge established an affirmative record delineating that the accused understood his rights and effectively waived them. It takes only moments to establish such a record, but subsequent litigation that comes from not having one is costly both in time and money.
Like the Court of Military Review, I am troubled by a prophylactic application of these rules to a record of trial without some allegation of prejudice by an accused, particularly where, as here, he asked to be discharged from the Naval Service. This does not mean, however, that I would retreat one step from the procedural rule set forth in United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969). Further, I would not criticize the court below for literally applying that rule because I believe it serves the function of insuring that records of court-martial proceedings are complete. On the other hand, I would encourage military appellate courts to apply an Article 59(a) test in a case under circumstances such as those presented here. Additionally, I would require the accused to make some allegation as to what different result might have been achieved by another lawyer if he had been present during the proceedings — i.e., that the accused would not have entered a guilty plea.
It is not unreasonable for us to put the burden on the accused to say, through counsel, to the appellate courts that he is dissatisfied with the result in his case; that he wants a new trial or a different result; and that he tell us why.
Thus, in a sense, I agree with the dissatisfaction expressed by the court below. On the other hand, I would not want to diminish the burden on: 1) our excellent military trial judges to perform their duties in a manner that insures a thorough and complete record of trial; or 2) our excellent appellate military judges to insist on receiving such a record for their review. I simply would like to achieve a balance between what is just and proper in terms of Article 59(a).
There is a difference between denying an accused the right to counsel and failing to advise, or misadvising, an accused as to that right. As to the latter, I do not believe reversible error necessarily occurs. Hence, on the facts of this case, I could affirm the findings and sentence. However, I certainly do not object to a hearing to clear up any ambiguities in the military judge’s advice. I would leave it to the Court of Military Review to determine what is necessary to fairly resolve this appeal.
. Uniform Code of Military Justice, 10 U.S.C. § 838.
. 10 U.S.C. § 859(a).
. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).
. United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).