(concurring).
I agree with Chief Judge Baum that, under the circumstances of this case, Article 26(c), Uniform Code of Military Justice was not complied with. With the Court equally divided on this issue, I concur that reversal results. I express my separate views in this case in an effort to provide some guidance to those charged with administering the Uniform Code of Military Justice in the Coast Guard, while recognizing that my views, standing alone, have little weight.
I agree with the views expressed by Judges Josephson and Burgess that the Court of Military Appeals, in United States v. Moorehead, 20 U.S.C.M.A. 574, 44 C.M.R. 4 (1971), was concerned with the institutional framework then existing in the Coast Guard for the assignment of judges to try general courts-martial. I also agree that the Coast Guard has established a system for assignment of judges to general courts-martial that complies with both the letter and spirit of Article 26(c) and Moorehead, supra, and that the Coast Guard attempted a good faith compliance with those requirements. However, I perceive it our duty to consider the circumstances of the case before us and to determine how that system functioned for this particular case. That the system established is adequate for most cases, is not dispositive.
The Coast Guard has decided that it can function, under normal circumstances, by complying with the literal requirements of Moorehead, supra, and has designated one officer, directly responsible to the Chief Counsel, who clearly has the primary duty to try whatever general courts-martial may occur and who is used to try special courts-martial. While this arrangement has proven satisfactory for several years, it does not provide for the circumstances where that designated officer is unable to act as military judge in a particular case. While there are distinctions that can be made in the manner in which the military judge was assigned and detailed in this case, as compared to the manner in which this was accomplished in Moorehead, supra, I do not believe that these differences meet the requirement that a general court-martial judge have that function as his or her primary duty. Furthermore, to approve the arrangements made for the trial of this case could lead to a recurrence of the former practice of random or one time assignments and a series of hair-splitting distinctions that simply are not necessary.
Where the designated general courts-martial judge has recused himself or herself from a given case, or where the disqualification is apparent before being detailed to a case, there is an alternative which can provide for the expedient disposition of the case while avoiding any appearance or allegation of failure to comply with Article 26(c). That Article and RCM 503(b)(3) permit duly designated general court-martial judges from another armed service to be detailed to Coast Guard courts. Considering that this alternative will be rarely necessary, it does not appear that obtaining the services of a military judge from another service would be unduly difficult or that it would be detrimental to the administration of military justice in the Coast Guard.
I would not preclude all temporary designations of a qualified Coast Guard officer to duty as general court-martial judge. In *876those circumstances where the designated Coast Guard general court-martial judge was temporarily incapable of performing his or her duties in whatever general courts-martial might occur, or was so overburdened with general courts-martial as to require temporary assistance, the designation of a qualified officer for an established period of reasonable duration, coupled with complete disassociation from former duties during that assignment and utilization as special court-martial judge, would appear to comply with the mandates of Article 26(c). See Moorehead, supra. The particulars of such a temporary designation must, of necessity, await scrutiny in a future case.