(dissenting):
I agree with the position of Judges Josephson and Burgess below. 25 MJ 870, 876-77. This case is not the same as United States v. Moorehead, 20 USCMA 574, 44 CMR 4 (1971), where the Coast Guard employed an ad hoc military judge system for all cases. Ever since Moorehead, the Coast Guard has maintained at least one permanent-duty military judge. Here, as it happens, that judge knew appellant and was even a potential character witness for him.
In this circumstance, nothing could be more practical or fair to appellant than what happened — another officer, who had previously served as general court-martial judge, was temporarily redesignated as a military judge. This officer was duly relieved of his prior assignment and formally detailed to the judiciary as his “primary” (defined in Webster’s Third New International Dictionary 1800 (Unabridged 1981) as “first in rank or importance”) duty.
There are many circumstances, both within and without the military, where people are given temporary responsibilities in addition to or in lieu of their ordinary duties. Court-martial membership is a ready example. It is self-evident that such temporary duties often are regarded as taking, for the time being, priority over normal duties. At the completion of such tasks, the regular duties regain paramountcy. That is what happened here, and I read nothing into it that was sinister or contrary to the spirit and intent of Article 26(c), Uniform Code of Military Justice, 10 USC § 826(c). See also R.C.M. 502(c), Manual for Courts-Martial, United States, 1984.
Like my Brothers, and Chief Judge Baum and Judge Bridgman below, I agree that a judge from another service might well have been appointed to the court-martial. The question, however, is not whether there was an alternative, but whether there was anything the matter with the procedures utilized.
The military judge here was not subordinate to the convening authority, either before, during, or after the court-martial, and he was not rated for his judicial performance by any commander. It is astonishing to me that Congress could have intended that not a single attorney within the entire Coast Guard establishment would be competent to step in and pick up the judicial reins if the sole general court-martial judge was, for whatever reason, unable to proceed in a particular case. This, I gather, is the true holding of the majority opinion because the substitute judge here was obviously one of the most qualified officers in the Coast Guard to preside over a court-martial.
As there is not even the suggestion that appellant was prejudiced [Art. 59(a), UCMJ, 10 USC § 859(a) ], I would affirm.