with whom WISS, Judge, joins (concurring in part and dissenting in part):
I agree with the majority’s disposition of Issue I. With respect to Issue II, I agree that defense counsel was conflict-free and that the staff judge advocate erred, but I disagree with the majority’s implicit holding that the staff judge advocate’s error was not prejudicial.
Although appellant did not expressly state that he desired to “fire” his detailed counsel, it is clear that appellant and detailed defense counsel were estranged. The degree of estrangement is unknown because of the staff judge advocate’s error. The post-trial submissions indicate a lack of meaningful communication between appellant and detailed defense counsel. Although appellant asserted his innocence in his letter to the convening authority, detailed defense counsel limited his submission to a request for clemency, with no mention of appellant’s assertions of innocence.
Under the circumstances, I believe that we have no choice but to treat this case as analogous to United States v. Leaver, 36 MJ 133 (CMA 1992), which also involved an accused who did not believe that detañed defense counsel could properly represent him. I would return this case for a new post-trial recommendation and convening authority’s action.