Opinion of the Court
ROBERT E. Quinn, Chief Judge:
This appeal raises an important question regarding the adequacy of the accused’s representation by his appointed defense counsel.
The accused went absent without leave on January 4, 1956. Tie remained absent until apprehended September 15, 1956. Thereafter, he was charged with desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. Before the case came up for trial, the appointed defense counsel negotiated for, and the accused entered into, an agreement with the convening authority. This agreement provided that the accused would enter a plea of guilty, and if the court members adjudged a severe sentence the convening authority would approve no more than a dishonorable discharge, total forfeitures, and confinement at hard labor for eighteen months.
At the trial, the accused entered a plea of guilty and the court returned findings of guilty of the offense charged. During the sentence procedure, trial counsel followed the usual practice and read from the first page of the charge sheet the personal information concerning the accused. The principal recitals are to the effect that the accused is 30 years old; that he had six years prior satisfactory military ; service; and that he had been in confinement before the trial for over two months. There was no evidence of previous convictions. The law officer advised the accused of his right to present evidence in mitigation or to make an unsworn statement. After consulting with defense counsel, the accused said that he desired to remain silent. Defense counsel made no statement and offered no argument on the accused’s behalf. The law officer then instructed the court members on the maximum punishment, which includes confinement at hard labor for three years. The court closed to deliberate on the sentence. However, as the law officer and the trial personnel were withdrawing from the courtroom, they were summoned by the president. The court was reopened, and the president requested a copy of the “data which the trial counsel just read.” The information from the charge sheet was reread to the court members. Again defense counsel remained silent. After deliberating for eight minutes the court reopened and announced that it had sentenced the accused to a dishonorable discharge, total forfeitures and confinement at hard labor for two years.
In his post-trial review the convening authority’s staff judge advocate set out a number of other matters relating to the accused. These include the following: that the accused is married and has two children, a daughter four years of age and a son eight months old; that there is no evidence of civilian “crim[507]*507inal arrest or convictions”; that the accused had no previous conviction during his entire service in the Army; that he had “no time lost” under the provisions of 10 USC § 1579 (now § 3638); and that his last service rating was excellent in both conduct and efficiency. The staff judge advocate recommended that the dishonorable discharge be suspended to give the accused “the opportunity to earn restoration to duty.” Pursuant to the pre-trial agreement, the convening authority reduced the period of confinement to one and one-half years; and, in accordance with his staff judge advocate’s recommendation, suspended the execution of the discharge for the term of confinement or the completion of appellate review, whichever is later. A board of review affirmed the findings of guilty and the sentence, without opinion.
On this appeal, the accused contends that he was deprived of the effective assistance of counsel during the sentence procedure because of the complete inaction of his defense counsel. In an affidavit in support of his contention, he makes the following allegations:
“That, prior to the commission of the alledged offense he was notified that his wife was pregnant; that she was not in a position to support herself and that he absented himself in an effort to support her after attempts to obtain assistance from the American Red Cross and the Army Emergency Relief had failed.
“That, in addition, he requested furlough from his organization commander for the purpose of assisting his wife and was refused.
“That, the trial defense counsel was aware of these facts and failed to present them to the court.
“Further, that, the wife was available and desired to be called as a witness in behalf of the accused and that the trial defense counsel failed to call her.”
Under the Uniform Code of Military Justice the accused’s guilt and sentence must be determined by the court-martial. To avoid the strain and the problems of a trial on the merits, the accused can plead guilty. If he enters into a pretrial agreement in regard to his plea with the convening authority, the agreement cannot transform the trial into an empty ritual. See United States v Peterson, 8 USCMA 241, 24 CMR 51; United States v Hinton, 8 USCMA 39, 41, 23 CMR 263. True, the plea disposes of the necessity for the presentation of evidence of guilt and it eliminates the requirement of formal instructions to the court-martial. United States v Lucas, 1 USCMA 19, 1 CMR 19. But there is still the vital question of sentence. Speaking of the importance of this question, we said in United States v Brasher, 2 USCMA 50, 52, 6 CMR 50: “In a special and peculiar sense the sentence of the law for adjudged misconduct ... is the product of a trial court. It alone, of all agencies of .the law, is authorized to ‘adjudge’ the law’s penalty.”
The sentence proceeding is an integral part of the court-martial trial. United States v Strand, 6 USCMA 297, 306, 20 CMR 13. Plainly, therefore, counsel’s duty to represent the accused does not end with the findings. Remaining for determination is the question of the accused’s liberty, property, social standing — in fact, his whole future. And his lawyer is charged with the substantial responsibility of appealing on his behalf to the conscience of the court.
No hard and fast rule can be promulgated to test the sufficiency of the discharge of counsel’s responsibilities. See United
States v Hunter, 2 USCMA 37, 6 CMR 37. Sometimes a single action can be sufficient to show ineffective representation. United States v Walker, 3 USCMA 355, 12 CMR 111. On other occasions “cumulative . . . omissions at the trial” will spell out the inadequacy. United States v McMahan, 6 USCMA 709, 723, 21 CMR 31. Each case must be decided on its own facts; and in a given case there may be a legitimate difference of opinion as to the effect of actions or omis[508]*508sions of counsel in his representation of the accused.
Some of the matters in mitigation which apparently were available but not presented have already been mentioned. The accused has set out others in his affidavit. If these recitals were undisputed we would be compelled to “wonder how any counsel could . . . [have done] less for his client.” United States v Parker, 6 USCMA 75, 86, 19 CMR 201. Consequently, despite our certainty as to defense counsel’s good faith, we cannot overlook the damaging effect of his omissions. Whatever practical comforts he may have drawn from the preliminary agreement with the convening authority, defense counsel did not provide the court-martial with anything from which it could determine a just sentence. Neither did he provide anything from which a board of review could reach an informed judgment as to the appropriateness of the sentence affirmed by the convening authority.
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Opinion of the Court
ROBERT E. Quinn, Chief Judge:
This appeal raises an important question regarding the adequacy of the accused’s representation by his appointed defense counsel.
The accused went absent without leave on January 4, 1956. Tie remained absent until apprehended September 15, 1956. Thereafter, he was charged with desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. Before the case came up for trial, the appointed defense counsel negotiated for, and the accused entered into, an agreement with the convening authority. This agreement provided that the accused would enter a plea of guilty, and if the court members adjudged a severe sentence the convening authority would approve no more than a dishonorable discharge, total forfeitures, and confinement at hard labor for eighteen months.
At the trial, the accused entered a plea of guilty and the court returned findings of guilty of the offense charged. During the sentence procedure, trial counsel followed the usual practice and read from the first page of the charge sheet the personal information concerning the accused. The principal recitals are to the effect that the accused is 30 years old; that he had six years prior satisfactory military ; service; and that he had been in confinement before the trial for over two months. There was no evidence of previous convictions. The law officer advised the accused of his right to present evidence in mitigation or to make an unsworn statement. After consulting with defense counsel, the accused said that he desired to remain silent. Defense counsel made no statement and offered no argument on the accused’s behalf. The law officer then instructed the court members on the maximum punishment, which includes confinement at hard labor for three years. The court closed to deliberate on the sentence. However, as the law officer and the trial personnel were withdrawing from the courtroom, they were summoned by the president. The court was reopened, and the president requested a copy of the “data which the trial counsel just read.” The information from the charge sheet was reread to the court members. Again defense counsel remained silent. After deliberating for eight minutes the court reopened and announced that it had sentenced the accused to a dishonorable discharge, total forfeitures and confinement at hard labor for two years.
In his post-trial review the convening authority’s staff judge advocate set out a number of other matters relating to the accused. These include the following: that the accused is married and has two children, a daughter four years of age and a son eight months old; that there is no evidence of civilian “crim[507]*507inal arrest or convictions”; that the accused had no previous conviction during his entire service in the Army; that he had “no time lost” under the provisions of 10 USC § 1579 (now § 3638); and that his last service rating was excellent in both conduct and efficiency. The staff judge advocate recommended that the dishonorable discharge be suspended to give the accused “the opportunity to earn restoration to duty.” Pursuant to the pre-trial agreement, the convening authority reduced the period of confinement to one and one-half years; and, in accordance with his staff judge advocate’s recommendation, suspended the execution of the discharge for the term of confinement or the completion of appellate review, whichever is later. A board of review affirmed the findings of guilty and the sentence, without opinion.
On this appeal, the accused contends that he was deprived of the effective assistance of counsel during the sentence procedure because of the complete inaction of his defense counsel. In an affidavit in support of his contention, he makes the following allegations:
“That, prior to the commission of the alledged offense he was notified that his wife was pregnant; that she was not in a position to support herself and that he absented himself in an effort to support her after attempts to obtain assistance from the American Red Cross and the Army Emergency Relief had failed.
“That, in addition, he requested furlough from his organization commander for the purpose of assisting his wife and was refused.
“That, the trial defense counsel was aware of these facts and failed to present them to the court.
“Further, that, the wife was available and desired to be called as a witness in behalf of the accused and that the trial defense counsel failed to call her.”
Under the Uniform Code of Military Justice the accused’s guilt and sentence must be determined by the court-martial. To avoid the strain and the problems of a trial on the merits, the accused can plead guilty. If he enters into a pretrial agreement in regard to his plea with the convening authority, the agreement cannot transform the trial into an empty ritual. See United States v Peterson, 8 USCMA 241, 24 CMR 51; United States v Hinton, 8 USCMA 39, 41, 23 CMR 263. True, the plea disposes of the necessity for the presentation of evidence of guilt and it eliminates the requirement of formal instructions to the court-martial. United States v Lucas, 1 USCMA 19, 1 CMR 19. But there is still the vital question of sentence. Speaking of the importance of this question, we said in United States v Brasher, 2 USCMA 50, 52, 6 CMR 50: “In a special and peculiar sense the sentence of the law for adjudged misconduct ... is the product of a trial court. It alone, of all agencies of .the law, is authorized to ‘adjudge’ the law’s penalty.”
The sentence proceeding is an integral part of the court-martial trial. United States v Strand, 6 USCMA 297, 306, 20 CMR 13. Plainly, therefore, counsel’s duty to represent the accused does not end with the findings. Remaining for determination is the question of the accused’s liberty, property, social standing — in fact, his whole future. And his lawyer is charged with the substantial responsibility of appealing on his behalf to the conscience of the court.
No hard and fast rule can be promulgated to test the sufficiency of the discharge of counsel’s responsibilities. See United
States v Hunter, 2 USCMA 37, 6 CMR 37. Sometimes a single action can be sufficient to show ineffective representation. United States v Walker, 3 USCMA 355, 12 CMR 111. On other occasions “cumulative . . . omissions at the trial” will spell out the inadequacy. United States v McMahan, 6 USCMA 709, 723, 21 CMR 31. Each case must be decided on its own facts; and in a given case there may be a legitimate difference of opinion as to the effect of actions or omis[508]*508sions of counsel in his representation of the accused.
Some of the matters in mitigation which apparently were available but not presented have already been mentioned. The accused has set out others in his affidavit. If these recitals were undisputed we would be compelled to “wonder how any counsel could . . . [have done] less for his client.” United States v Parker, 6 USCMA 75, 86, 19 CMR 201. Consequently, despite our certainty as to defense counsel’s good faith, we cannot overlook the damaging effect of his omissions. Whatever practical comforts he may have drawn from the preliminary agreement with the convening authority, defense counsel did not provide the court-martial with anything from which it could determine a just sentence. Neither did he provide anything from which a board of review could reach an informed judgment as to the appropriateness of the sentence affirmed by the convening authority. In reviewing the sentence, the board of review “can be compassionate; it can be lenient; it can be forbearing,” but it can act only on the basis of what it finds in the record. United States v Lanford, 6 USCMA 871, 378, 20 CMR 87. If there is nothing of Substance in the record, there is little that the board of review can do to carry out its responsibility.
However, the accused’s contentions in regard to the mitigating circumstances are not undisputed. The accused’s former counsel, whose competency is now drawn in question, has filed an affidavit in which he maintains that he examined the accused’s background and determined that “making any reference to the past service and family conditions of the accused, would either work to the utmost disadvantage of the accused or would result in the deliberate perpetration of a fraud upon the court.” If the facts are actually as counsel indicates them to be, then it can properly be said that the accused and his counsel decided advisedly to make ho statement and to take a chance on the sentence.
Manifestly, the question before us is one of grave importance to both the accused and his former counsel. We cannot choose arbitrarily between one or the other of their conflicting allegations. Moreover, their affidavits are insufficient for a truly informed judgment. A hearing on the matter should be held, and sworn testimony should be obtained. In civilian jurisdictions, a hearing of this nature would normally be held by the trial judge. In the military, the law officer acts substantially as a trial judge, but his authority is limited to the particular court-martial to which he is assigned. Hence he is not in a position to act. However, a board of review is qualified to act in the premises. It is composed of legally trained persons and it is invested with fact-finding powers. Article 66, Uniform Code of Military Justice, 10 USC § 866. Accordingly, we return the record of trial to The Judge Advocate General for submission to the board of review to hear and determine the matter in dispute. Since a charge of incompetency of the kind alleged in this case constitutes a waiver of the attorney-client privilege, the accused’s former counsel can testify at the hearing to conversations with the accused. Hunt v Blackburn, 128 US 464, 9 S Ct 125, 32 L ed 488; United States v Monti, 100 F Supp 209 (ED NY); Hyde v State, 70 Ga App 823, 29 SE2d 820; Rodriguez v State, 130 Tex Crim 438, 94 SW2d 476; Everett v Everett, 319 Mich 475, 29 NW2d 919, 922. Upon the decision of the board of review, further proceedings in the case may be had in accordance with Article 67(b) (2), (3), Uniform Code of Military Justice, 10 USC §867.
Judge Ferguson concurs.