(concurring in part and dissenting in part).*
In United States v. Moorehead, 20 U.S.C.M.A. 574, 44 C.M.R. 4 (1971) the United States Court of Military Appeals answered the following certified issue in the negative:
“Was the Court of Military Review correct in determining that the Coast Guard’s method of assigning a military judge to a general court-martial complies with the requirements of Article 26(c), Uniform Code of Military Justice?”
Judge Baum’s opinion accurately portrays the underlying facts in both Moorehead, supra, and the instant case. Indeed, the scenarios are strikingly similar. Yet, there are some variances and at least one significant distinction. While necessarily focusing on the circumstances of the particular assignment of the general court-martial judge in Moorehead, the Court of Military Appeals was in actuality addressing a broader issue. The broader issue concerned the prevailing institutional or organizational scheme by which judges were then detailed to Coast Guard general courts-martial. The Moorehead judge assignment process was merely representative of a routine institutional practice.
Implicit in the Congressional scheme which passed as Article 26(c) was the recognition that a trial judiciary would bring professionalism to those courts which were capable of handling the most serious of courts-martial.2 Another important feature of the trial judiciary concept for general courts-martial was that these judges would not be subordinate to the officers who convened general courts-martial.3
In Moorehead, while finding the “arrangement” which resulted in the random or one-time use of military judges defective, the court stated:
“But if the Coast Guard Chief Counsel designated one officer to try whatever general courts-martial occurred during the time that officer was designated, and if that same officer also was used to try special courts-martial, such an arrangement would appear to comply with congressional intent.”
(44 C.M.R. 10).
After Moorehead, the Coast Guard instituted just such a system, which continues today, and which was in effect at the time of the trial in the instant case. However, the officer so designated to try general courts-martial here recused himself. That recusal led to the assignment and detail of another experienced military judge, who concurrently was relieved from his duties as a district legal officer and, by that relief, was not subordinate to an officer who convened general courts-martial. From the paperwork associated with this detail it is clear that the Coast Guard was mindful of the strictures of Moorehead and strove to literally comply with the requirements of both Article 26(c), Uniform Code of Military Justice, and Moorehead.
*877The significant distinction between the instant case and Moorehead is that the institutional framework found defective in Moorehead has been remedied. Is this a distinction which lessens or abrogates the precedential effect of Moorehead? We think so. It seems to us that the thrust of the Court of Military Appeals decision in Moorehead was directed against the Coast Guard’s reluctance to establish a permanent trial judiciary. In Moorehead, the Court of Military Appeals specifically said.
“Since under the arrangement in effect at the time of this trial no Coast Guard military judge had the primary duty of trying general courts-martial cases, we find that Article 26(c) was not complied with.” (Emphasis supplied).
44 C.M.R. 10.
We see no indications in the instant case of the concerns which led to the Court of Military Appeals decision in Moorehead. We may take judicial notice of the fact that the judge in the instant case is an experienced military judge and had, himself, previously been assigned to and served as the Coast Guard’s permanent duty general court-martial military judge. Given the Coast Guard’s compliance with the institutional focus of Moorehead, the recusal of the permanently detailed general court-martial military judge, the substitution of a very experienced military judge, no indication that the assignment in this instance was a subterfuge or anything other than an attempted good-faith compliance with the other concerns of Moorehead (e.g., primary duty, assignment to the Chief Counsel, not to a general court-martial convening authority, etc.) and Congress, and the absence of prejudice to the accused, we do not believe that Moorehead dictates setting aside the findings and sentence. We agree with Chief Judge Baum, however, that under Article 66, Uniform Code of Military Justice and Rule 4 of our Court Rules a majority must determine the findings and sentence correct in law and fact before they may be affirmed. Accordingly, we agree that the findings and sentence must be set aside since a majority has not found the appointment of the judge in this case to be legally correct.
APPENDIX 1
1301
23 MAY 1986
From: COMMANDANT
To : CAPT William H. NORRIS, 041 36 9674, USCG
SUBJ: ASSIGNMENT OF DUTIES
Ref : (a) Article 26(c), UCMJ, 10 USC 826(c)
(b) Code of Federal Regulations, .Title 49, Part 1, Appendix A2.(3)
1. Pursuant to references (a) and (b) you are hereby designated as a General Court-Martial Military Judge for the United States Coast Guard. Your primary duty shall be that of a General Court-Martial Military Judge.
2. Other than the above, you shall not undertake to perform duties of either a judicial or nonjudicial nature unless you receive pri- or authorization from me. You are authorized to provide advice and assistance, as needed, to the staff members of the Twelfth District Legal Office. The performance of this temporary collateral assignment shall not infringe in any way upon your primary duty as a General Court-Martial Judge as required by reference (a).
3. This designation shall remain in effect until specifically cancelled by me, or until you are transferred from duty in the Office of Chief Counsel, whichever shall come first.
E.H. DANIELS
Judge Barry recused himself from participation in this case.
. Regarding the Senate Amendment to Article 26(c) limiting the requirement for a trial judiciary to the handling of general courts-martial, the Senate, in setting up a different system for special courts-martial judges recognized that junior judge advocates "can be utilized for other duties while serving as military judges of special courts-martial in preparation for later assignment to general courts-martial." (Emphasis supplied). S.Rep. No. 1601, 90th Cong., 2d Sess. (1968).
. Moorehead, supra at 8 and 10.