
    UNITED STATES, Appellee v CHARLES E. CULVER, Private, U. S. Marine Corps, Appellant
    20 USCMA 217, 43 CMR 57
    No. 23,418
    December 18, 1970
    
      Captain Harry N. Lembeck, USMCR, was on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel Charles J. Keever, USMC, and Commander Michael F. Fasanaro, Jr., JAGC, USN, were on the pleadings for Appellee, United States.
   Opinion of the Court

Darden, Judge:

Issues concerning the failure of the military judge to assure himself that accused’s pretrial request for trial by military judge alone was understandingly made and his failure to advise the accused of his right to retain appointed military counsel if he elected civilian counsel or military counsel of his own choosing, if reasonably available, were the subject of consideration in our recent cases of United States v Jenkins, 20 USCMA 112, 42 CMR 304 (1970), and United States v Turner, 20 USCMA 167, 43 CMR 7 (1970). The findings and sentence in this case, however, must be overturned because the appellant did not submit before or at the inception of trial his request, in writing, to be tried by military judge alone. United States v Dean, 20 USCMA 212, 43 CMR 52 (1970).

Accordingly, the decision of the United States Navy Court of Military Review is reversed. The findings of guilty and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy. Another trial may be ordered.

Judge Ferguson concurs.

Quinn, Chief Judge

(dissenting) :

I would affirm jurisdiction on the basis of my dissent in United States v Dean, 20 USCMA 212, 43 CMR 52 (1970), and uphold the sufficiency of the advice as to counsel on the authority of United States v Turner, 20 USCMA 167, 43 CMR 7 (1970).  