Opinion of the Court
GEORGE W." Latimer, Judge:
The single issue upon which we granted review in this case has to do with the representation which must be afforded an accused at the time of his hearing before a board of review. Unfortunately, the record shows an obstreperous accused who, with the aid and assistance of his sister, succeeded in goading a board of review and Army officials to proceed in a way which we believe may be at variance with proper procedure. We are not going to relate all of the exasperating activities of the accused, for that would serve no good purpose. Suffice it to say that his conduct caused two qualified defense counsel to request relief from assignment to avoid compromising their standings as lawyers and, unless he changes his tactics, a successor will fare very little better. But in spite of his behavior and our reluctance to aid a person who believes he has the right to pick and choose assigned counsel as his whim dictates and demand that they present arguments which in good conscience and consistent with the ethics of their profession they feel they cannot, nevertheless, in order to avoid the remote possibility he might have been denied some right, we are going to afford him one last chance to have a military lawyer appointed by The Judge Advocate General of the Army represent him before a board of review. If this appointment is rejected without good cause, he must either employ civilian counsel forthwith at his own expense or suffer the consequences of being unrepresented before the board of review. So there will be no misunderstanding of our position on the new appointment, we quote and adopt this language found in State v Rinaldi, 156 A 2d 28, 30 (1959) :
“. . . It is enough that the attorney assigned to the appeal is qualified to represent the prisoner, and that he has advised with him and done whatever possible to represent him competently. Counsel is not required to dance to the prisoner’s tune.
“Those unfortunate enough to ■ be caught up in the web of the law and who, mistakenly or not, consider themselves aggrieved must disabuse themselves of the notion now prevailing in certain prison circles that they may accept or reject assigned counsel, as whim or scheme dictates. The right to assigned counsel is not the right to pick an attorney of one’s own choosing, nor the right to select counsel who will completely satisfy a defendant’s fancy as to how he is to be represented.”
The reason we are taking this unusual step is to clear up an area of doubt and because we have some reservations about the procedure adopted by the board of review when it permitted counsel to withdraw. Under Article 70, Uniform Code of Military Justice, 10 USC § 870, The Judge Advocate General of [309]*309the respective service is required to appoint officers of certain qualifications to act as counsel on appeal. Those officers designated as appellate defense counsel by The Judge Advocate General have the duty to represent an accused before the board of review when he requests representation. In the case at bar, the accused submitted an appropriate request, and two qualified and experienced counsel were assigned. The officers designated attempted to perform their tasks, but difficulties arose when they were requested to make certain assignments of error before the board of review which they considered inappropriate. They sought to straighten out the difficulty, but without success. Thereafter, the accused communicated directly with the board of review and requested that it ■discharge the assigned officers, and they filed a petition requesting permission to withdraw. Prior to acting on this petition, the board of review directed a communication to the office of The Judge Advocate General of the Army, apparently asking whether other counsel would be appointed in place of those then acting, and it was informed that if the accused refused to accept the services of the two appointed lawyers, no other attorney would be made available. The board nevertheless relieved the officers of the assignment and, without timely notice to the accused, proceeded to hear and decide the matter.
It was at this point in the proceedings where we believe the board of review committed error. Unquestionably, Article 70 of the Code, supra, designates 'The Judge Advocate General of the •service as the officer authorized to appoint appellate counsel, and it may well be that for good cause he can refuse to furnish substitute lawyers — a point we need not decide — but once an attorney appears in the case, a board of review has the authority to pass on his right to be relieved. In deciding that issue, it should not authorize the withdrawal of all defense counsel without taking some measures to protect the rights of an accused to representation. Here the board ■of review had received a request from the accused to dismiss the officers from .further participation in the case, but the board was not compelled to honor that prayer for relief. Neither was the board required to act favorably on counsel’s request to withdraw. When the impasse developed, one solution available to the board was to direct the accused to file his own assignments of error and order military counsel to state the errors they thought were appropriate. The latter could then have appeared to argue any of the assignments they considered meritorious. In that way both counsel and accused are protected. And while that method keeps counsel in the case over the protest of the accused, it is to his advantage for they are present to protect his rights and it is hardly feasible for him to represent himself on appeal and in ab-sentia. However, if an ac- cused protests against such an order and insists on firing his appointed lawyers, he cannot later complain if the board concludes not to require counsel to remain in the case, for an accused who is sane can always forfeit his right to representation before the board, and actions showing an arbitrary and calculated refusal to accept appointed counsel may constitute an abandonment of that right. Congress granted the accused the privilege to be represented by qualified counsel, but it did not authorize him to dictate to a board of review or The Judge Advocate General of the service, or to choose his own appointed counsel. If he proceeds on the theory that he can arrogate unto himself the right to choose his own military lawyer, he runs the risk of not being represented for, barring some showing by him of the unsuitability or incompetency of appointed counsel, he can be required either to accept the representation made available or to wage his appeal alone. There is a limit beyond which military authorities need not go and if an accused becomes unreasonable in his demands, he may forfeit his right to any assistance. But the difficulty with supporting the action of the board on this theory arises from the fact that it failed to accept its responsibility and rule on the issue of accused forfeiting his right to representation [310]*310until it was toó late for him to protect his rights.
This brings us to another solution which could have been used by the board to bring the issue within the sweep of its authority. As the record stands, it appears that the board may have placed too much reliance on the decision of the Director of Military Justice, the Chief of the Defense Appellate Division, or others in the office of The Judge Advocate General. As previously indicated, the power to appoint counsel is vested in the The Judge Advocate General. But the board controls its own hearings and it makes the final decision on matters properly before it.
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Opinion of the Court
GEORGE W." Latimer, Judge:
The single issue upon which we granted review in this case has to do with the representation which must be afforded an accused at the time of his hearing before a board of review. Unfortunately, the record shows an obstreperous accused who, with the aid and assistance of his sister, succeeded in goading a board of review and Army officials to proceed in a way which we believe may be at variance with proper procedure. We are not going to relate all of the exasperating activities of the accused, for that would serve no good purpose. Suffice it to say that his conduct caused two qualified defense counsel to request relief from assignment to avoid compromising their standings as lawyers and, unless he changes his tactics, a successor will fare very little better. But in spite of his behavior and our reluctance to aid a person who believes he has the right to pick and choose assigned counsel as his whim dictates and demand that they present arguments which in good conscience and consistent with the ethics of their profession they feel they cannot, nevertheless, in order to avoid the remote possibility he might have been denied some right, we are going to afford him one last chance to have a military lawyer appointed by The Judge Advocate General of the Army represent him before a board of review. If this appointment is rejected without good cause, he must either employ civilian counsel forthwith at his own expense or suffer the consequences of being unrepresented before the board of review. So there will be no misunderstanding of our position on the new appointment, we quote and adopt this language found in State v Rinaldi, 156 A 2d 28, 30 (1959) :
“. . . It is enough that the attorney assigned to the appeal is qualified to represent the prisoner, and that he has advised with him and done whatever possible to represent him competently. Counsel is not required to dance to the prisoner’s tune.
“Those unfortunate enough to ■ be caught up in the web of the law and who, mistakenly or not, consider themselves aggrieved must disabuse themselves of the notion now prevailing in certain prison circles that they may accept or reject assigned counsel, as whim or scheme dictates. The right to assigned counsel is not the right to pick an attorney of one’s own choosing, nor the right to select counsel who will completely satisfy a defendant’s fancy as to how he is to be represented.”
The reason we are taking this unusual step is to clear up an area of doubt and because we have some reservations about the procedure adopted by the board of review when it permitted counsel to withdraw. Under Article 70, Uniform Code of Military Justice, 10 USC § 870, The Judge Advocate General of [309]*309the respective service is required to appoint officers of certain qualifications to act as counsel on appeal. Those officers designated as appellate defense counsel by The Judge Advocate General have the duty to represent an accused before the board of review when he requests representation. In the case at bar, the accused submitted an appropriate request, and two qualified and experienced counsel were assigned. The officers designated attempted to perform their tasks, but difficulties arose when they were requested to make certain assignments of error before the board of review which they considered inappropriate. They sought to straighten out the difficulty, but without success. Thereafter, the accused communicated directly with the board of review and requested that it ■discharge the assigned officers, and they filed a petition requesting permission to withdraw. Prior to acting on this petition, the board of review directed a communication to the office of The Judge Advocate General of the Army, apparently asking whether other counsel would be appointed in place of those then acting, and it was informed that if the accused refused to accept the services of the two appointed lawyers, no other attorney would be made available. The board nevertheless relieved the officers of the assignment and, without timely notice to the accused, proceeded to hear and decide the matter.
It was at this point in the proceedings where we believe the board of review committed error. Unquestionably, Article 70 of the Code, supra, designates 'The Judge Advocate General of the •service as the officer authorized to appoint appellate counsel, and it may well be that for good cause he can refuse to furnish substitute lawyers — a point we need not decide — but once an attorney appears in the case, a board of review has the authority to pass on his right to be relieved. In deciding that issue, it should not authorize the withdrawal of all defense counsel without taking some measures to protect the rights of an accused to representation. Here the board ■of review had received a request from the accused to dismiss the officers from .further participation in the case, but the board was not compelled to honor that prayer for relief. Neither was the board required to act favorably on counsel’s request to withdraw. When the impasse developed, one solution available to the board was to direct the accused to file his own assignments of error and order military counsel to state the errors they thought were appropriate. The latter could then have appeared to argue any of the assignments they considered meritorious. In that way both counsel and accused are protected. And while that method keeps counsel in the case over the protest of the accused, it is to his advantage for they are present to protect his rights and it is hardly feasible for him to represent himself on appeal and in ab-sentia. However, if an ac- cused protests against such an order and insists on firing his appointed lawyers, he cannot later complain if the board concludes not to require counsel to remain in the case, for an accused who is sane can always forfeit his right to representation before the board, and actions showing an arbitrary and calculated refusal to accept appointed counsel may constitute an abandonment of that right. Congress granted the accused the privilege to be represented by qualified counsel, but it did not authorize him to dictate to a board of review or The Judge Advocate General of the service, or to choose his own appointed counsel. If he proceeds on the theory that he can arrogate unto himself the right to choose his own military lawyer, he runs the risk of not being represented for, barring some showing by him of the unsuitability or incompetency of appointed counsel, he can be required either to accept the representation made available or to wage his appeal alone. There is a limit beyond which military authorities need not go and if an accused becomes unreasonable in his demands, he may forfeit his right to any assistance. But the difficulty with supporting the action of the board on this theory arises from the fact that it failed to accept its responsibility and rule on the issue of accused forfeiting his right to representation [310]*310until it was toó late for him to protect his rights.
This brings us to another solution which could have been used by the board to bring the issue within the sweep of its authority. As the record stands, it appears that the board may have placed too much reliance on the decision of the Director of Military Justice, the Chief of the Defense Appellate Division, or others in the office of The Judge Advocate General. As previously indicated, the power to appoint counsel is vested in the The Judge Advocate General. But the board controls its own hearings and it makes the final decision on matters properly before it. Here it sought advice from the office of The Judge Advocate General on the appointment of substitute counsel, but it could have gone further than solicitation. It could have requested the appointment of other counsel if the members were of the opinion that the accused should be represented by someone other than the original appointees. Had the request been denied, the board could have refused to hear the case until counsel was detailed. We mention this possibility to strengthen the hand of the boards of review should the occasion arise, although we are convinced the situation is not likely to develop, for most accused persons are grateful for the free representation and seldom is there a complaint on the selection. However, if an accused makes a demand which is reasonable and it is refused by The Judge Advocate General, the board of review could bar a hearing until representation is furnished.
This brings us to the real crux of this case. Apparently the board of review pursued the course it did because it was convinced the accused was unreasonable and was merely trying to bend his lawyers and the processes of the board to the dictates of his command. In such a situation, a board is faced with a delicate situation, but we have no doubt that if the board proceeds properly it may release the lawyers and proceed without requiring the Government to furnish other counsel. However, further action should be stayed for a period adequate to allow service upon the accused of the order permitting counsel to withdraw, and giving him sufficient time to meet the new situation. In the order releasing counsel, there should be included a notice that different military counsel will not be made available to accused and he must either represent himself or obtain civilian counsel. Unfortunately, the action taken by the board of review in the case at bar does not quite meet these requirements. While the board of review exhibited a certain amount of solicitude for the rights of the accused once it determined to relieve counsel, it should have made certain that notice of its order was served on him in time to' permit him to act before the case was decided. The following sequence of events, which merely touch on the surface of this attorney-client dispute, will show our reasons for reaching that conclusion. After several prior continuances, on April 28, 1959, the board issued an order enlarging the period of time for the accused to file assignments of error. This order contained the caveat that, unless they were filed by May 11, 1959, the board would proceed to examine the record of trial and render its decision. Nothing was said in the order concerning the possible relief of counsel. Apparently, this order was. not served on the accused personally, but the record before us indicates his counsel were notified, and in turn they apprised him of the ruling and sent him a copy of the order. The assignments-were not submitted as ordered by the board; however, on May 12, 1959, defense counsel filed a motion to withdraw and on May 18, 1959, the motion was granted. The bases for the withdrawal were letters of the accused dated May T and May 8, 1959, in which he requested that appellate counsel be discharged. In the board order of May 18, 1959, it was provided that the case would proceed without counsel, and that order was served on the accused, a copy thereof being mailed to him the same day. Four days later, on May 22, 1959, the board rendered its decision on the merits, affirming the findings and sentence. We believe that when the board decided to-relieve the attorneys and proceed with[311]*311■out the accused being represented, it .should have notified the accused of those facts and afforded him some reasonable time to obtain other representation. We •conclude four days is not adequate for that purpose, particularly when accused is confined at Leavenworth, Kansas, and counsel are stationed in Washington, D. C. True it is the board had previously placed a burden on accused to file assignments of error by a given date under penalty of the board proceeding to decide the ease, but nothing was said at that time by the board about loss of representation, and the accused was not put on notice until sometime after May 18, 1959, that his counsel had been dis■charged. The petition to be relieved was filed by the attorneys after the last ■date set for filing assignments of error .and while that would not necessarily expend the time, it initiated a new form of proceedings and accused was entitled to timely notice of the action taken. His •demand for removal was accompanied by a request for other counsel and while the board was not compelled to meet his •demands, he should have been informed of the refusal in time to protect his interests. It, therefore, appears to us that the board of review overlooked the fact that its order was changed from one re•quiring the accused to submit assignments of error to one relieving counsel and that notice of the former was not notice of the latter. While it may be argued that accused should have known his counsel would be released because he ■wrote the board of review asking for this form of relief, it is to be noted he was insisting on his right to be represented and it does not follow that he is chargeable with knowledge that he was •to be without the benefit of other counsel. In this connection, we have not -overlooked the assertion that he was informed by the appointed defense coun■sel, the Director of Military Justice, and others, that substitute attorneys would not be designated if he rejected those ■originally detailed. But that argument misses the mark in that those persons •do not speak for or control the decisions of the board of review, which is the ■agency charged by law with determining the rights of the accused. He is not compelled to have his rights adjudicated by others, and we know of no authority for third persons to prophesy future orders of the board. So far as the board of review was concerned, the accused asked for dismissal, the lawyers petitioned to withdraw, and that set the issue. The board alone could decide the question, and accused was entitled to notice of the decision after it was rendered. This he may have received, but it was mailed too late to be of any value to him. Accordingly, we believe the board of review acted too hastily when it decided the case with only four days intervening between the date its order was mailed and the day its decision was rendered.
For the foregoing reasons, the decision of the board of review is reversed and the record is returned to The Judge Advocate General of the Army with directions to refer the matter to a board of review for further hearing and to appoint counsel to represent the accused at the hearing.
Chief Judge Quinn concurs.