
    UNITED STATES, Appellee v MICHAEL J. SMITH, Sergeant, U. S. Marine Corps, Appellant
    20 USCMA 444, 43 CMR 284
    
      No. 23,411
    April 2, 1971
    
      Commander E. M. Fulton, Jr., JAGC, USN, and Captain Harry N. LembecJc, USMCR, were on the pleadings for Appellant, Accused.
    
      Commander Michael F. Fasanaro, Jr., JAGC, USN, and Lieutenant Thomas F. Bastow, JAGC, USNR, were on the pleadings for Appellee, United States.
   Opinion of the Court

Darden, Judge:

The Court granted'two issues in this case. One concerns the failure of the military judge to inform the appellant that if he was represented by civilian counsel his detailed military counsel could continue to act' as an associate counsel if Smith so desired. United States v Turner, 20 USCMA 167, 43 CMR 7 (1970), decided this issue against the appellant. Both in Turner and in the instant case, appointed military counsel represented the appellants.

Failure of the military judge to obtain in writing the appellant’s request for military judge alone requires reversal of the appellant’s conviction, however. United States v Dean, 20 USCMA 212, 43 CMR 52 (1970). Accordingly, the decision of the Court of Military Review is reversed and the findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy. Another trial may be ordered.

Ferguson, Judge

(concurring in part and dissenting in part):

I concur in part and dissent in part.

I agree that reversal of the accused’s conviction is required because the military judge failed to obtain in writing the appellant’s request for trial by military judge alone. United States v Dean, 20 USCMA 212, 43 CMR 52 (1970). However, I also believe that reversal is required due to the failure of the military judge to inform the appellant that if he was represented by civilian counsel his detailed military counsel could continue to act as an associate counsel, if Smith so desired, for the reasons set forth in my separate opinion in United States v Turner, 20 USCMA 167, 43 CMR 7 (1970).

Quinn, Chief Judge

(dissenting):

I adhere to the views set out in my dissent in United States v Dean, 20 USCMA 212, 43 CMR 52 (1970), and I would affirm the decision of the Court of Military Review.  