(concurring in the result):
I agree with the result reached in the present case but do so on the basis of this Court’s decision in United States v. Holley, 17 M.J. 361 (C.M.A.1984). Accordingly, I do not agree with Chief Judge Everett’s opinion that a military accused, having exercised a peremptory challenge, is entitled to an additional peremptory challenge whenever a new member is added to the court. Art. 41 (b), Uniform Code of Military Justice, 10 U.S.C. § 841(b). Judge Cox’s approach to this case is more flexible and is not necessarily inconsistent with language in United States v. Holley, supra at 367-68, implying a similar discretionary power may exist in the military judge, albeit on a different statutory basis. Art. 39, UCMJ, 10 U.S.C. § 839. However, to the extent his opinion is construed as requiring the military judge to grant a peremptory challenge in the situation posited above, I also disagree with him.
Concerning comparable federal practice, I must note that Fed. R. Crim. P. 24(b) expressly provides for additional peremptory challenges only in cases involving multiple defendants. See United States v. Nelson, 733 F. 2d 364, 367-68 (5th Cir.), cert. denied, 469 U.S. 937, 105 S.Ct. 341, 83 L.Ed.2d 276 (1984); United States v. Wilson, 571 F.Supp. 1422, 1429-30 (S.D. N.Y.1983), aff'd, 750 F.2d 7 (2d Cir.1984). Cf. United States v. Springfield, 829 F.2d 860, 863-64 (9th Cir.1987). In fact, a proposed amendment to this rule imparting discretion to a federal court to grant additional peremptories in all cases was rejected by Congress in 1977. 18 U.S.C.A., Rule 24, p. 37 (1987 Pocket Part). Also, there is no analog in military practice to Fed.R. Crim.P. 24(c) which authorizes additional peremptories challenges where alternate jurors are involved. See United States v. Springfield, supra. In this light and in view of the federal criminal cases applying Fed.R.Crim.P. 24, which were cited in United States v. Holley, supra at 366-67, I must reject my Brothers’ tortuous interpretations of Article 41(b).