(concurring):
This case asks us to revisit United States v. Holley, 17 M.J. 361 (C.M.A.1984). Because I essentially agree with Chief Judge Everett’s view of Article 41(b), Uniform Code of Military Justice, 10 U.S.C. § 841(b), I join him in overruling that decision prospectively.
Articles 25 and 29, UCMJ, 10 U.S.C §§ 825 and 829, respectively, create a situation unique to the military. First of all, the convening authority selects the court members. Second, a court-martial composed of members may not proceed if for some reason the number of members falls below the statutory minimum: 5 in a general court-martial and 3 in a special court-martial. Art. 16, UCMJ, 10 U.S.C. § 816. Recognizing the possibility of military exigencies, Congress permitted a convening authority to “detail” new members to the court-martial and continue the trial. Art. 29. This is true even if evidence has been introduced.
In contrast, in civilian practice a mistrial occurs if a jury falls below quorum after a trial is underway. For this reason, it is common practice in most civilian jurisdictions to appoint alternate jurors, all of whom are subjected to peremptory challenge if such challenge in authorized by law. See generally 76 Am.Jur.2d, Trial, § 1096 (1975).
In Holley, the majority concluded:
We hold that the word “entitled” which is employed in Article 41(b), as well as 28 *478U.S.C. § 1870 and Fed.R.Crim.P. 24(b), provides no discretion to a trial judge to award additional challenges. United States v. Gullion, 575 F.2d 26 (1st Cir.1978); United States v. Palumbo, 401 F.2d 27, 275 (2d Cir.1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969); Estes v. United States, 335 F.2d 609 (5th Cir.1964); Blount v. Plovidba, 567 F.2d 583, 585 (3d Cir.1977).
Id. at 366. A review of these cases reveals that only Blount discusses the meaning of “entitled” — albeit in the context of peremptory challenges in a civil case, not a criminal case. I conclude that reliance on these authorities in Holley was misplaced in military jurisprudence.
Thus I turn to constitutional notions of due process and fundamental fairness and find “that the right of peremptory challenge is not of constitutional magnitude, and may be withheld altogether without impairing the constitutional guarantee of impartial jury and fair trial.” Batson v. Kentucky, 476 U.S. 79, 108, 106 S.Ct. 1712, 1729, 90 L.Ed.2d 69 (1986) (Marshall, J., concurring), citing Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965); Frazier v. United States, 335 U.S. 497, 505 n. 11, 69 S.Ct. 201, 206 n. 11, 93 L.Ed. 187 (1948); United States v. Wood, 299 U.S. 123, 145, 57 S.Ct. 177, 185, 81 L.Ed. 78 (1936); and Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 29, 63 L.Ed. 1154 (1919). That does not mean that the abuse or misuse of the peremptory challenge is not of constitutional concern. See Batson v. Kentucky, supra.
It is, therefore, with a view toward fundamental fairness in military jurisprudence that I look at the question of peremptory challenges in a court-martial and this is what I find:
1. The Government has the functional equivalent of an unlimited number of peremptory challenges. Article 25(d)(2) provides that “the convening authority shall detail as members ... such members of the armed forces as, in his opinion, are best qualified for the duty.” The statutory authority to choose the members necessarily includes the corollary right not to choose.
Additionally, Article 41 gives trial counsel, who represents the Government in the court-martial, one more peremptory challenge. Ironically, in this case it was the use of the peremptory challenge by trial counsel that put the defense in the position of having to breach quorum if it was to exercise its peremptory challenge. In this way it came to be that members who were never exposed to the accused’s peremptory challenge were put on the court-martial.
2. As previously mentioned, under the law a court-martial may proceed with new members even after considerable evidence has been introduced. A military accused does not have the protection of a mistrial in that circumstance.
3. I can find no persuasive reason which convinces me that an additional challenge should not be granted in the circumstance where the convening authority is detailing brand new members to a court-martial.
I would not make additional peremptory challenges a matter of right. Instead, I would construe Article 41 to give each accused one peremptory challenge as a matter of statutory right. Then I would give the military judge broad discretion to grant such additional peremptory challenges as he deems appropriate given the circumstances then and there existing. Thus, I would construe the word “entitled” to mean that an accused enjoys at least one peremptory challenge. See United States v. Harris, 13 M.J. 288, 294 n. 3 (C.M.A.1982) (Everett, C.J., dissenting). I would not read into it the negative construction of limiting him to only one challenge if more were necessary to insure a fair trial.
In applying such a construction to a given case, I may part company with Chief Judge Everett. Here I conclude that this military judge did not abuse his discretion in denying an additional peremptory challenge. It is quite obvious on this record that he followed our “mandate for liberality in passing on challenges” for cause. *479United States v. Smart, 21 M.J. 15, 21 (C.M.A.1985).
Accordingly, I join Chief Judge Everett in affirming the conviction. I likewise agree with prospective application of the new rule.