dissenting:
In our initial decision in this case,1 we found that CPT Fierst’s attempt to create a “severe” panel so tainted the selection process as to require a rehearing on sentence. After careful reconsideration, I adhere to our original findings and, for the reasons stated in that opinion and below, respectfully dissent.
I
The majority, while condemning CPT Fierst’s actions, holds that, because the convening authority was properly advised as to Article 25, UCMJ, requirements and personally applied them, the selection process purged the attempt to “stack” the panel. I disagree.
The importance of the nominating process was recently emphasized by Judge Cox:
Those responsible for nominating court members should reflect upon-the importance of this task. It is a solemn and awesome responsibility and not one to be taken lightly or frivolously. It is a responsiblity that Congress has entrusted to convening authorities and has not required some other method of selection, such as random choice. Even so, it is the most vulnerable aspect of the court-martial system; the easiest for critics to attack. A fair and impartial court martial is the most fundamental protection that an accused servicemember has from unfounded or unprovable charges. There is a duty to nominate only fair and impartial members.
United States v. Smith, 27 M.J. 242, 252 (C.M.A.1988) (Cox, J., concurring).
In Smith, as in other cases, the Court of Military Appeals condemned the nomination or selection of court members designed “to help assure a particular outcome.” Id. at 250. I find an attempt to assure a particular outcome in this case. The process of member nomination was deliberately subverted and fundamentally flawed. I am unable to attribute to the convening authority an ability to purge error he did not know existed nor am I persuaded that CPT Fierst was unsuccessful in his effort to pack the court.
II
Judge Werner in his concurring opinion opines that “appellant’s failure to challenge the array at trial constitutes waiver.” He further states that “[sjimple pretrial inves*657tigation would have revealed CPT Fierst’s identity and role in the nominating process.” Such an assertion is, in my opinion, an ex post facto exercise in clairvoyance.
In his discovery request, the trial defense counsel requested “[disclosure of all advice, written or. oral, provided to the convening authority concerning selection of the court-martial panel” in appellant’s case. Assuming that the trial defense counsel received the same documents relating to the selection of court members that were subsequently admitted as exhibits at the DuBay hearing, the defense counsel would not have discovered any discrepancies or indications that improper criteria were being used in the nomination/selection process. In fact, the documents do not reveal that CPT Fierst was the individual who actually prepared the list of nominees submitted by the adjutant general for the 2d Armored Division (Forward). The staff judge advocate’s instructions to those individuals who compiled the lists of court member nominees and his advice to the convening authority on the selection of court members mirrored the criteria set forth in Article 25, UCMJ. There was no indication in any documents or annotations on those documents that the proper criteria had not been applied or that an additional criteria had been included, that is, hard-liners.
Even if the trial defense counsel had personally interviewed CPT Fierst, there is no indication that CPT Fierst would have revealed his improper motives when preparing the list of court member nominees. In his affidavit, CPT Fierst stated that he intentionally nominated individuals who he perceived to be “hard-liners” but that he did not realize that it was improper to apply such criteria until after appellant’s trial. In his sworn statement, CPT Fierst stated:
Throughout this process, I had the perception that I was not to discuss this matter with anyone, and that what I was doing was somehow secretive, or not totally above board. I became even more concerned when I heard about [First Lieutenant] W.’s court-martial, and the feeling that I had that he was getting railroaded by not having a fair and impartial jury hear his case. I sensed from conversations around the command that he would not get a fair trial because he was an officer. As I further reflected on this matter, I became concerned that military justice was not evenly dealt with in this command and I wanted no part of this manipulation of military justice.
To require trial defense counsel to discover deliberately concealed misconduct in the nominating process places an extraordinary investigative burden on counsel and to expect nominating officials to willingly confess essentially criminal activity2 to interviewing counsel is unrealistic in the extreme. I concur with the majority’s opinion that “the challenged selection procedure had not been discovered nor could it reasonably have been discovered by the exercise of diligence prior to the conclusions of appellant’s trial.”
Ill
Judge Werner also argues that there is waiver because “appellant has not only failed to challenge the array, he explicitly and without reservation waived his right to court-martial by members and requested trial by judge alone.” I find that appellant’s election to be tried by judge alone was induced by, or has the appearance of being induced by, the improper nomination procedure.3
*658The charges were referred on 12 December 1986. The pretrial agreement was dated by appellant and trial defense counsel on 13 December 1986, but the approval signature (signed by the staff judge advocate “per voco”) was dated 12 December 1986. There are no provisions in the agreement for a judge alone trial and the request for judge alone trial was dated 18 December 1986. There is no indication in the record to indicate that appellant chose a judge alone trial without the benefit of reviewing and considering the disposition and attitude of the court members and indeed in his post trial submission trial defense counsel asserted:
In preparation for trial, the question of forum, the accused’s right to be tried by a panel of officers, enlisted members or by judge alone, was of primary concern. Once the ease was referred, the panel selected was viewed as a ‘severe’ one, and, as such, the decisions indicated at trial [judge alone] were made.
It is beyond question that one of the fundamental decisions to be made by counsel and accused at trial is the selection of forum. In each case an accused, with the advice of counsel, will attempt to determine which forum is most advantageous. Knowledge of the judge and members is weighed against, inter alia, the type of offense, plea, and evidence. The selection can have considerable impact on findings and sentence and is not taken lightly.
Here CPT Fierst attempted to stack the panel with hard-liners. Trial defense counsel states that the panel was viewed as severe and, because of its perceived severity, a judge alone trial was selected. This court’s proponents of waiver find that there is no connection between CPT Fierst’s conduct, the perceived severity of the panel, and accused’s selection of forum. I lack their clarity of insight and, within the context of an obvious attempt to subvert the system, accept the trial defense counsel’s assertion and find nexus.4
This case points out one of the fundamental weaknesses of our system. The member selection process, completely in the hands of the government, is highly vulnerable to prosecutorial manipulation. I find it difficult to believe that my brothers strain to affirm a case so clearly tainted by a nominating official.
I would return this case for a rehearing on sentence.
APPENDIX 3
ACMR 8601499
United States Army Court of Military Review
13 January 1989
United States, Appellee v. Private E2 Jay M. Hilow,
261-59-8700,
United States Army, Appellant
Before MYERS, SMITH, and BASHAM, Appellate Military Judges.
OPINION OF THE COURT ON FURTHER REVIEW
SMITH, Judge:
Appellant was tried by a military judge sitting as a general court-martial on 18 December 1986 at Bremerhaven, Federal Republic of Germany. Pursuant to his pleas, he was found guilty of two specifications of wrongful use of marijuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter UCMJ], The convening authority approved his sentence to a bad-conduct discharge, *659confinement for four months, total forfeitures, and reduction to Private El.
On appeal appellant alleges, inter alia, that he was denied the right to a fair and impartial sentence proceeding because the nomination and selection of the court members detailed to his court-martial were improper. Appellant argues that he was “effectively coerced into waiving his right to trial by court members” because the improperly selected members were perceived to be and were in fact “severe.” In support of his assertion of error, appellant refers to the affidavit of Captain (CPT) Fierst which was attached to appellant’s post-trial submission [attached hereto as Appendix 1]. CPT Fierst, assigned as a deputy adjutant, alleged among other things that he was directed by members of the Office of the Staff Judge Advocate to “select nominees [for courts-martial panels] who were commanders and supporters of a command policy of hard discipline."
Captain Fierst’s affidavit either directly or by implication raised serious questions/assertions of improper selection of panel members and unlawful command influence on the part of the command and staff of the 2d Armored Division (Forward). A limited hearing was ordered under the provisions of United States v. DuBay, 37 C.M.R. 411 (C.M.A.1967). United States v. Hilow, ACMR 8601499 (A.C.M.R. 16 Dec.1987) (unpub.).
The record of trial was returned to The Judge Advocate General for remand to a different convening authority for a hearing on the method of selection of panel members and command influence allegations. The military judge, under the provisions of Article 39(a), UCMJ, received available evidence bearing on the issue of whether CPT Fierst’s allegations were true and to answer questions asked by this court, specifically:
a. Did a member of the Adjutant General’s office of the 2d Armored Division (Forward) prepare a roster or list of possible court member nominees?
b. Did the Staff Judge Advocate or a member of his staff or anyone else direct or request CPT Fierst to select nominees who were commanders and supporters of a command policy of hard discipline?
c. Were the names of officers in the rank of First Lieutenant removed from “this list” because the Assistant Division Commander believed “they lacked experience”?
d. Did anyone “explain” to CPT Fierst that the convening authority would be provided a list of all soldiers (along with the nominees) to “give the appearance that no particular group was excluded”? If so, who told this to CPT Fierst?
e. If a list of “nominees” was prepared by CPT Fierst, were any or all of them selected for court duties?
After a thorough hearing, the military judge entered written findings of fact and answers to this court’s specific questions [attached hereto as Appendix 2], In essence, the hearing judge found that there was no evidence supporting CPT Fierst’s conclusion that “the SJA [Staff Judge Advocate] wanted [him] to select nominees who were commanders and supporters of a command policy of hard discipline.” The military judge, however, found that CPT Fierst did in fact select nominees who he perceived to fit this criteria. CPT Fierst’s list of 30 persons was submitted to the convening authority, together with lists of nominees from two subordinate jurisdictions. The three lists together contained 47 names. The convening authority selected 30 people for court-martial duty, 19 of whom were from CPT Fierst’s list. Of the 10 people detailed to appellant’s court-martial, 6 were from CPT Fierst’s list. The judge further found that the convening authority received and applied the correct advice pursuant to Article 25(d)(2), UCMJ, in selecting the members for duty.
The hearing judge’s findings of fact are supported by the record and although CPT Fierst’s conclusions as to his directions were not, in our opinion, the result of specific instructions on the part of the SJA or his deputy, we are constrained to note that CPT Fierst’s conclusion should or would be difficult to reach in a jurisdiction in which the task of selecting court members was *660viewed as “a solemn and awesome responsibility and not one to be taken lightly or frivolously.” See United States v. Smith, 27 M.J. 242, 252 (C.M.A.1988) (Cox, J. concurring).
I
Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 912(b)(1) [hereinafter R.C.M.] requires that a motion challenging the selection of members be made “[b]efore the examination of members ... or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier.” Waiver is predicated upon a failure to make a timely motion. R.C.M. 912(b)(3). It is clear in this case that CPT Fierst’s procedure for selecting nominees was discovered after trial and only after CPT Fierst became concerned that “military justice was not evenly dealt with” in the command and voluntarily came forward. Under these circumstances, we find that the challenged selection procedure had not been discovered nor could it have been discovered by the exercise of diligence prior to the conclusion of appellant’s trial. Appellant raised the issue to the convening authority in his post-trial submission. His request for relief was denied. The issue was preserved for appeal.
II
The procedure employed by CPT Fierst in selecting as nominees “supporters of a command policy of hard discipline” is a clear violation of the criteria required to be used by a convening authority when selecting members for a court-martial.1 See United States v. McClain, 22 M.J. 124, 131-132 (C.M.A.1986) (selection of court members who will adjudge heavy sentences is not a basis for selection authorized by Article 25(d)(2), UCMJ). CPT Fierst was not, however, the convening authority and the convening authority properly applied Article 25 criteria when selecting the members in this case even though, unbeknown to him, he was using a “tainted” list. The question before the court is whether CPT Fierst’s attempt to “stack” the court so flawed the process as to invalidate the convening authority’s selection. We find that it did.
Selection of court members designed or intended to “achieve a particular result as to findings or sentence” is prohibited. United States v. Smith, 27 M.J. at 250 (quoting United States v. McClain, 22 M.J. at 132). Previous cases have generally involved the use or imputed use of improper criteria by the convening authority. United States v. McClain, 22 M.J. at 132 (improper advice provided by the staff judge advocate was imputed to the convening authority where action of the convening authority reflected reliance upon the advice); United States v. Greene, 43 C.M.R. 72 (C.M.A.1970) (improper selection found where SJA had recommended only senior officers be selected and only senior officers were selected); United States v. Hedges, 29 C.M.R. 458 (C.M.A.1960) (where seven of nine members of court had primary duty assignments involving crime prevention, detection, or control, the appearance of a handpicked court favoring the government was so great as to require reversal).
As a practical matter, the convening authority must rely on subordinates to make recommendations when selecting court members. Misconduct or misapplication of the appropriate criteria by nominating officials may taint the actual selection process by the convening authority. In addition, even though the convening authority may be unaware that nominations were made using inappropriate criteria, the public will suspect, especially upon selection of those nominees, that the convening authority applied the same improper criteria to the selection process. Cf. United States v. Smith, 27 M.J. at 251 (when a prosecutor participates in the selection process “the public will suspect that the membership *661mirrors his preference.”). We, however, do not conclude that whenever a subordinate applies inappropriate criteria in nominating potential court members that there is reversible error. We do not establish a per se rule for we can envision situations where the appearance of or potential for such a taint may be dissipated through the selection process, voir dire, challenges, or the circumstances surrounding the attempt itself. Appellate courts, as well as convening authorities, are, however, required to ensure “that ‘court packing’ does not occur in courts-martial — or even seem to occur.” United States v. Smith, 27 M.J. at 250 (emphasis added).
In this case, although the convening authority was not attempting to stack the court in favor of the government, one of his subordinates was making such an attempt. Although we can not definitively determine whether the convening authority’s selection of CPT Fierst’s nominees created a “severe” panel, we recognize a reasonable probability that the court was in fact stacked, thereby, subverting appellant’s option to select trial by members. Military due process requires that an accused be given an unfettered option to chose trial by members. Even if CPT Fierst’s stated purpose was not realized, we find that his intent and, therefore, the appearance of evil remains where 19 (nearly two-thirds) of his nominees were selected as court members. See United States v. McClain, 22 M.J. at 131 (it is not the impact, but the intent behind the selection of court members which made the selection process incompatible with Article 25). Cf. United States v. Smith, 27 M.J. 242 (the convening authority’s action to include female court members on court-martial involving sexual misconduct was intended to achieve a particular result as to findings and sentence). We will take corrective action. We have considered the other errors raised by appellant and find them to be without merit.
We find no evidence that the court’s composition induced appellant to plead guilty. See United States v. McClain, 22 M.J. at 128 (accused’s attack on findings of guilty not allowed where there was no evidence that the manner of selecting court members induced him to plead guilty). Appellant submitted a pretrial agreement the day following referral of the charges and entered provident pleas of guilty. It is obvious that his decision to plead guilty was made prior to referral. Accordingly, the findings of guilty are affirmed. United States v. Daigle, 1 M.J. 139, 141 (C.M.A.1975) (where accused entered plea of guilty, improper selection of court-martial members did not require reversal of the conviction but only of the sentence). The sentence is set aside. The same or a different convening authority may order a rehearing on the sentence.
Judge BASHAM concurs.
MYERS, Senior Judge, dissenting:
There is little doubt that the selection criteria utilized by CPT Fierst was improper, and that use of such criteria was properly condemned by the Court of Military Appeals in United States v. McClain, 22 M.J. 124 (C.M.A.1986), and United States v. Smith, 27 M.J. 242 (C.M.A.1988), among others. However, there are two fundamental differences between the facts of this case and the facts of those cases: (1) in those cases the improper criteria were utilized by the staff judge advocate and/or the convening authority, and (2) the use of the improper selection tainted the entire membership of the panels. Here, neither of those factors are present. The improper criteria in this ease were utilized by a misguided member of a subordinate command from whose list only a portion of the final panel selections were made.1 There is no *662evidence in this case that the actions or intentions of either the staff judge advocate or the convening authority were improper. On the contrary, the evidence adduced at the DuBay hearing established that the staff judge advocate and the convening authority acted properly and in good faith in the selection process. Nor is it alleged that any of the nominees on the list in question were otherwise ineligible to sit. What we have, then, is a situation where a subordinate functionary, whether through excessive zeal or excessive lack of good sense, or both, undertook to select personnel from his command who he thought were inclined to “hard discipline.”2
It is also significant that appellant insisted that his election to be tried by judge alone was voluntary,3 that he entered an undeniably provident plea of guilty, freely admitted his guilt to the military judge during the providence inquiry, and entered into a highly favorable pretrial agreement with the convening authority which he improved upon by receiving a significantly lesser sentence from the military judge. Only after CPT Fierst’s affidavit was promulgated did the trial defense counsel allege for the first time that because the court panel appeared “severe,” it affected “decisions indicated at trial.” It is noted that he carefully avoided saying that, but for the “severity” of the panel, he would have been inclined to elect trial by members.
I utterly fail to see, therefore, where the appellant was prejudiced by the process by which the court members who did not sit on his case were selected. My brothers in the majority say: “We, however, do not conclude that whenever a subordinate applies inappropriate criteria in nominating potential court members that there is reversible error. We do not establish a per se rule for we can envision situations where the appearance of or potential for such a taint may be dissipated through the selection process, voir dire, challenges, or the circumstances surrounding the attempt itself.” I agree completely with that view, but fail to understand why my said brothers did not apply those sensible standards here. The evidence reveals that in addition to the nominees submitted by the subordinate commands, the staff judge advocate provided the convening authority with an “Alpha” roster which supposedly contained the names of all personnel in the jurisdic*663tion. Thereafter, the convening authority, in making his selections, wrote in the names of two officers who had not appeared on the list submitted to him. That convinces me that the convening authority made his selections from his personal knowledge of the individuals concerned, after having received correct advice from the staff judge advocate. Therefore, the convening authority obviously did not depend solely on input from his subordinates, but made his own personal choices. If this does not dissipate any taint attaching to CPT Fierst’s list, I cannot imagine what would. Add to that the other considerations discussed in the preceding paragraph, it becomes clear that any conceivable prejudice to appellant by CPT Fierst’s abortive attempt to “pack the court” fades into microscopic significance.
The holding in this case creates yet another burden on the staff judge advocate and the convening authority by requiring them to look behind every court panel nomination from subordinate commands to ensure that the selection processes utilized by those commands were correct. To inject such a requirement into the system could further complicate a processing system already overly complicated and could significantly slow the processing of cases in which the processing time limits are very rigid. See United States v. Burton, 44 C.M.R. 166 (C.M.A.1971) (“90-day Rule”); Manual for Courts-Martial, 1984, Rule for Courts-Martial 707 (“120-day Rule”). It is submitted that rather than enhance the quality of justice, such a requirement could in fact foster injustice. The public image of military justice will not be enhanced if the administration of courts-martial becomes so complex and burdensome that misconduct goes unpunished, especially in times of national emergency. Certainly, we all must zealously safeguard the appearance of fairness in the military justice system, but we should also avoid carrying appearances to unreasonable extremes. Somewhere there must be a line drawn between form and substance, and in my view, it should be drawn before it reaches this case.
I would affirm the findings of guilty and the sentence.
. The opinion of United States v. Hilow, 27 M.J. 846 (A.C.M.R.1989), vacated and reh’g en banc ordered, publication withdrawn (A.C.M.R. 3 Feb. 1989) (order of the court en banc) (unpub.), is attached as Appendix 3.
. Article 37(a), UCMJ, states in pertinent part:
No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts....
. Judge Werner also states that CPT Fierst’s "motives and intent in nominating potential members of court-martial panels cannot be imputed to the convening authority.” Such a position totally disregards the possibility that CPT Fierst was an excellent judge of character who accomplished exactly what he intended. While the convening authority may not have shared CPT Fierst’s motive and intent, the result may not have differed.
. Contrary to Chief Judge Holdaway's statement that "CPT Fierst, and to some degree the dissent, seem to make the unwarranted assumption that an officer, who believes in 'hard discipline' could not try a case fairly,” my dissent does not make such an assumption. Rather, it is based on the belief that CPT Fierst's attempt was to create a court that was not fair and impartial. Further, based on service starting in 1959 in both enlisted and line officer status and as a JAGC officer, I am not in the least "bemused”, as is the Chief Judge, that an adjutant general captain might have sufficient understanding of human nature and division personnel to make a credible attempt at improperly stacking a court.
. Article 25(d)(2), UCMJ, requires the convening authority to detail service members to courts-martial who are, in his opinion, "best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament."
. In finding number 7 of his findings of fact, the military judge found at the DuBay hearing, see United States v. Dubay, 37 C.M.R. 411 (1967), that:
Of the 30 persons selected by the CA [convening authority] for court-martial duty, 19 were people who had been on the list created by CPT Fierst. The list submitted by CPT Fierst contained 30 names. In the case of U.S. v. Hilow, the convening order (AE XI) shows 6 people who were on CPT Fierst's list. If the case were tried by officers alone, 3 of the 7 members would be from CPT Fierst’s list. If the case was tried by officers and enlisted, 4 *662of the 7 members would be from CPT Fierst's list.
. In his affidavit, CPT Fierst stated that he became "concerned" over what he had done for fear that a fellow officer, then pending trial, would not have a “fair and impartial jury hear his case.” One must appreciate the irony of the fact that this allegedly improperly selected court, inclined to hard discipline, acquitted that officer.
. After the military judge advised appellant of his choices of forum, the following colloquy ensued:
MJ Now, do you have any questions, at all, about these three types of trial that are available to you?
ACC No questions, sir.
MJ Have you discussed these options with your attorney and do you feel that you understand them?
ACC Yes, sir.
MJ Now, which option is it that you select? ACC I choose military judge alone, sir.
MJ And, do you have a written request to that effect?
MJ Now, I have been handed what has been marked as Appellate Exhibit I, a written request for trial before military judge alone. And, my first question to you, Private Hilow, regarding this document, is whether this is your signature, in the upper right-hand portion, where my thumb is located (holds in view of the accused)?
ACC Yes, sir, that's my signature.
MJ Okay. And, was my name, Lieutenant Colonel Donald Morgan, typed onto the form, before you signed it?
ACC Yes, sir, it was.
MJ Well, I’ve got to know whether this request is voluntary, on your part, so I want you to tell me whether you’re submitting the request of your own free will?
ACC It's my own free will, sir.
MJ Has anyone tried, in any way, to coerce you or to force you into signing or submitting this request?
ACC No, sir.
MJ Is this something that you’ve thought about — that you’ve discussed with your attorney — and, something that you’ve decided that you truly want to do?
ACC Yes, sir.