Opinion of the Court
Quinn, Chief Judge:
The question on this appeal,1 and in several similar cases, is whether the method by which enlisted court members were selected discriminated against the lower enlisted ranks in such way as to threaten the integrity of the courts-martial system and violate the Uniform Code of Military Justice.
Ordinarily, an objection to the method of selection of the triers of the facts must be made before trial. Shotwell Mfg. Co. v United States, 371 US 341, 9 L ed 2d 357, 83 S Ct 448 (1963); United States v Gale, 109 US 65, 27 L ed 857, 3 S Ct 1 (1883); United States v Klock, 210 F2d 217 (CA 2d Cir) (1954). Objection was not made in this case until the record of trial was before the board of review. Consequently, Government counsel contend the accused waived the right to challenge the validity of the selection process, since it does not appear he was unaware of the essential facts until he presented the matter to the board of review. See United States v Beer, 6 USCMA 180, 19 CMR 306. However, in two cases pending before us, the issue was raised at trial; and it appears likely to arise frequently until [34]*34decided on the merits. Appropriately, therefore, we can pass over the procedural deficiency to reach the substance of the issue, which was. considered by the board of review. See Coleman v Alabama, 377 US 129, 12 L ed 2d 190, 84 S Ct 1152 (1964); United States v Culp, 14 USCMA 199, 203, 33 CMR 411; United States v Hood, 9 USCMA 558, 26 CMR 338.
Beyond waiver, the first issue for consideration is the standard of selection of courts-martial members.2 Appellate defense counsel maintain military due process requires that the methods of selection approximate those in the civilian courts to insure a panel drawn from a cross section of the entire military community. Oppositely, the Government contends civilian standards are “antagonistic” to the military requirements. In support, it quotes a statement from the Court of Appeals for the Tenth Circuit to the effect that “decisions respecting the right to trial by one’s peers in civil courts are inapplicable” to the military courts. DeWar v Hunter, 170 F2d 993, 997 (1948), cert den 337 US 908, 93 L ed 1720, 69 S Ct 1048 (1949).
Under the Fifth and Sixth Amendments to the United States Constitution, persons in the armed forces do not have the right to indictment dictment by grand jury and trial by petit jury for a capital or infamous crime. Ex parte Quirin, 317 US 1, 87 L ed 3, 63 S Ct 2 (1942). However, courts-martial are criminal prosecutions, and those constitutional protections and rights which the history and text of the Constitution do not plainly deny to military accused are preserved to them in the service. United States v Culp, supra. Constitutional due process includes the right to be treated equally with all other accused in the selection of impartial triers of the facts. Methods of selection which are designed to produce a court membership which has, or necessarily results in, the appearance of a “packed” court are subject to challenge. United States v Hedges, 11 USCMA 642, 29 CMR 458; see also United States v Sears, 6 USCMA 661, 20 CMR 377. We should, therefore, consider the challenge to the integrity of the selection process, in the light of the experience and learning of the civilian courts that have dealt with challenges of the various methods of choosing juries. See United States v Baker, 14 USCMA 311, 34 CMR 91.
The legislative branch of the Government has broad power to prescribe the qualifications of jurors. United States v Wilson, 158 F Supp 442 (MD Ala) (1958), affirmed 255 F2d 686 (CA 5th Cir) (1958), cert den 358 US 865, 3 L ed 2d 98, 79 S Ct 97 (1958); United States v Mirabal Carrion, 140 F Supp 226 (Puerto Rico) (1956). Consistent with the public interest, it may exclude various groups in the community from eligibility. Rawlins v Georgia, 201 US 638, 50 L ed 899, 26 S Ct 560 (1906). From the time of the War of Independence until 1948, membership on courts-martial was limited to officers. The accused does not dispute, and we do not doubt, the constitutionality of the practice, antedating, as it does, the adoption of the Constitution, which specifically exempts the military from the jury trial provision. See United States v Culp, supra. After World War I, there was a considerable agitation, perhaps most articulately advanced by General Samuel T. Ansell, a judge advocate of the Army, to make enlisted persons eligible for appointment to a court-martial convened to try an enlisted accused. The attempt did not succeed at that time, but it gave strength and direction to the World War II reform movement. Morgan, “The Background of the Uniform Code of Military Justice,” 6 Vanderbilt Law Review 169 (1953). In 1948, the Elston Act modified the Articles of War, which governed the Army and the Air Force, to provide for enlisted membership on a court-martial, if requested by an enlisted accused. Elston Act, Public Law 759, 80th Congress, 62 Stat 604, 628, approved June 24, 1948. In 1950, Congress enacted the Uniform Code of Military Justice for all the armed forces. With some modification of the [35]*35Elston Act, the Code carried over the right of an enlisted accused to be tried by a court-martial composed in part of enlisted persons. The pertinent provision reads as follows:
“Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the convening of the court, the accused personally has requested in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be convened and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.” [Article 25(c) (1), 10 USC § 825.]
It is unnecessary for present purposes to review the reasons for, and the long evolution of, the qualification of enlisted persons for service on courts-martial. Suffice it to say that the right to enlisted court members was deemed important. Its importance is emphasized by the exceedingly narrow and specifically defined conditions under which a trial can be had without enlisted membership. As Mr. Felix Larkin, one of the principal draftsmen of the Code, informed the Subcommittee of the House Armed Services Committee, which held hearings on the Uniform Code, the denial of the right to enlisted members would be justifiable only “in the most exceptional type of case,” where the conditions “made it impossible for . . . [the convening authority] to obtain enlisted men.” Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 1150, 1151.
Here, the accused asked for, and was granted, enlisted court members. Of the four persons appointed to the court, three were sergeants major (E-9), and one was a master sergeant (E-7). The accused contends the method by which these members were selected violated the Uniform Code in that, all enlisted persons in grades lower than E-7, and all specialists regardless of grade, all of whom were otherwise eligible for appointment, were arbitrarily and dis-eriminatorily excluded from consideration. He also contends the selection process was invalid because a Negro enlisted man was arbitrarily included in the court membership. The Government does not question the facts upon which the accused’s allegation of error is predicated, but it denies the validity of the accused’s conclusions. The facts are set out in affidavits by persons who participated in the selection process.
From the affidavits, it appears that in the late afternoon of the day before trial, the accused, through his counsel, informed trial counsel he desired to exercise his right to have enlisted members on the court. The request was transmitted to the staff judge advocate, who told his deputy to obtain from the adjutant general’s office a list of “senior noncommissioned officers who were regarded as responsible and available for court-martial duty.” The staff judge advocate requested senior noncomis-sioned officers because he regarded “seniority of rank ... [as an] indication of civic responsibility and intelligence.” He also asked, because the accused is Negro and the alleged assaults were against white soldiers, that the list include at least one member of that race. The deputy telephoned the instructions to the deputy adjutant general, who in turn passed them on to the noncommissioned officer in charge, Sergeant Major R. M. Nelson. Understanding he was to select “mature, responsible, and experienced senior non-commissioned officers,” Sergeant Nelson compiled a list of eight or ten names by “random” selection from thq [36]*36“personnel rosters” in the office. The names were submitted by telephone to the staff judge advocate’s office. A written list with the names of Negro nominees marked with asterisks was prepared, and given to the chief of staff. He took the list to the convening authority. Three or four of the eight or ten names on the list were selected by the convening authority. No Negro on the list was chosen. Instead, the general asked by name for a Sergeant Jones who was believed to be a Negro. Jones, however, was not a member of that race. The adjutant general suggested two other enlisted men believed to be Negro; one turned out to be white; the other was rejected because two members of his command were already “tapped” for the court. After further inquiry, the staff judge advocate succeeded in obtaining a “responsible” Negro sergeant first class from an engineer unit. He was accepted by the convening authority, and on the day of trial was added to the court. According to the staff judge advocate, his sole purpose was to obtain “court members with integrity and common sense.” He regarded his method of selection as better designed to achieve that purpose than the mere submission of a list of names obtained “willy-nilly out of the . . . duty rosters of the Adjutant General.” And he believed the method was sanctioned by the practice in the Federal courts as delineated in United States v Hoffa, 205 F Supp 710 (SD Fla) (1962).
Undeniably, the selection of mature, responsible, and available persons for court-martial membership is in the best tradition of the judicial process. AH civilian jurisdictions have similar qualifications for jurors. See 28 USC § 1861; United States v Dennis, 183 F2d 201 (CA 2d Cir) (1950), affirmed 341 US 494, 95 L ed 1137, 71 S Ct 857 (1951). In fact, the Uniform Code explicitly gives the convening authority a large measure of discretion in selecting court members to the énd that he obtain the “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25(d) (2), Uniform Code of Military Justice, 10 USC § 825. As large as the discretion appears to be, the Uniform Code does not contemplate blanket exclusion of persons below specified rank as being unlikely to possess the statutory qualities.
Nothing in the Uniform Code expressly limits membership on a court-martial to persons of a particular rank. On the contrary, notwithstanding the reference to the selection of those “best qualified,” Article 25 implies all ranks and grades are eligible for appointment. Subsection (d) (1) carries forward the venerable tradition that, whenever it can be avoided, no court member shall be junior in rank or grade to the accused. Since the provision allows a court member junior to the accused to serve (see Mullan v United States, 140 US 240, 35 L ed 489, 11 S Ct 788 (1891)), Congress, apparently, believed the lower ranks would contain qualified persons who would be appointed to courts-martial as occasions warranted. The practice, both before and after the Uniform Code, reflects this belief, at least as far as officer members are concerned. The many records of trial that have come before this Court show that lieutenants and captains in the Army are frequently appointed to courts-martial, although they probably have substantially less experience and years of service than colonels and generals. Similarly, Navy courts-martial often include lieutenants as members, but rarely have admirals. Much less variation in rank has been observed in the enlisted membership, but, even here, almost all ranks have been appointed.
Enlisted grades range from E-l, the lowest, to E-9, the highest. Statistics presented by appellate defense counsel show that in the Army, during the period between 1959 through 1963, no enlisted court member was lower in grade than an E-4. Considering that E-1s and E-2s are normally persons with short periods of service, and allowing further for the statutory preference for persons senior in rank to the accused, the appellant’s statistics appear to reflect a realization that all enlisted ranks are eligible for selection as [37]*37court members. The testimony of several witnesses at the Congressional hearings on the Uniform Code indicates a general understanding to that effect. The following exchange between Mr. George Spiegelberg, testifying on behalf of the American Bar Association, and several members of the House Armed Services Subcommittee, is, perhaps, most representative:
“Mr. PHILBIN. Do you think a jury trial in any circumstances is advisable ?
“Mr. SPIEGELBERG. No, sir. As I said before, Mr. Philbin, I do not think that you should permit civilian interference.
“Mr. PHILBIN. I am speaking of a jury trial of his own peers.
“Mr. SPIEGELBERG. Oh, you are talking about the enlisted men on the court.
“Mr. RIVERS. That is what I am talking about.
“Mr. SPIEGELBERG. I am sorry, perhaps I misunderstood you completely. Frankly, and this has been discussed at length in the American Bar Association, we do not think that you get very far by having enlisted men on courts.
“Mr. RIVERS. It is not going to hurt.
“Mr. SPIEGELBERG. No, absolutely no.
“Mr. RIVERS. I do not think so.
“Mr. SPIEGELBERG. If it gives the enlisted man a feeling of confidence—
“Mr. RIVERS. That is right.
“Mr. SPIEGELBERG. That he might be able to have some of his peers on the court—
“Mr. RIVERS. That is right.
“Mr. SPIEGELBERG. Certainly the experiment can do no harm. But my shrewd guess would be that most of the enlisted men who serve on courts will either be master sergeants or tech sergeants with from 6 years’ service up and that they will be more severe in their judgment of the man on trial than would officers.
“But I agree completely. It does no harm and it may do good.
“Mr. RIVERS. That is right.
“Mr. GAVIN. Why would it necessarily have to be a sergeant or a master sergeant?
“Mr. SPIEGELBERG. It would not. But, I' say, my guess is that you will find in most cases the enlisted men on the court will be either first or second grade.
“Mr. PHILBIN. Why should that follow, necessarily?
“Mr. SPIEGELBERG. Well, I do not know why except that those are the enlisted men that the commander or the junior officer — the company commanders — know and they are the men that they actually select and recommend as being qualified for court-martial duty.
“Mr. PHILBIN. Of course, in doing it, you could see that it would be a fair representation of all enlisted men, of all ranks, and so forth.
“Mr. SPIEGELBERG. You could. But I think it is not more than a third now on the court and that would mean at most two on the average court, and it would be pretty hard to administer such a provision.
“I do not say it could not be done. I think it is better not to try to specify — .” [Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 715, 723, 724.]
Two other matters reflect the general understanding at the time of enactment of the Code that all enlisted persons are eligible for court membership. First, the Uniform Code’s definition of an enlisted person is not limited to those above a specified rank. 10 USC § 101 (17), superseding original Article 1(9), 50 USC § 551, defines an enlisted person as “a person in an enlisted grade.” (Emphasis supplied.) Secondly, the requirement of the 1948 Elston Act that court members have not less than two years’ service was eliminated in the Uniform Code.
[38]*38[37]*37What we have said about the original [38]*38understanding of the Code’s enlisted membership provision indicates that a method of selection which disregards individual qualification and deliberately and systematically excludes all enlisted persons of the lower ranks is contrary to the Uniform Code. Cf. Thiel v Southern P. Co., 328 US 217, 90 L ed 1181, 66 S Ct 984 (1946). The question is whether such discriminatory exclusion was practiced in this case.
Appellate defense counsel contend the statistics presented to us show that so few members of the lower enlisted ranks have served on courts-martial in relation to the large number of senior ranks as to establish a prima facie case of deliberate and long-continued discrimination throughout the Army. See Norris v Alabama, 294 US 587, 79 L ed 1074, 55 S Ct 579 (1935); Pierre v Louisiana, 306 US 354, 83 L ed 757, 59 S Ct 536 (1939). There are several flaws in the argument. For one, it is extremely doubtful that the accused’s statistics can properly be applied to the court-martial jurisdiction in which he was tried. The figures for 1960, for example, show there were fifty-one general courts-martial with enlisted members ; twenty-two of these tried accused in the rank of E-3 and E-4. One of the E-3 cases had an E-4 court member; apparently, four of the E-4 cases had E-5 court members. It would seem, therefore, that in almost twenty-three percent of the cases in these categories, the court membership included enlisted persons ,in the lowest rank that would assure compliance with the statutory preference for members senior to the accused. We are not informed as to the commands in which these courts were appointed. If they were appointed within the general court-martial jurisdiction in issue, there would patently be little substance to the accused’s claim of arbitrary discrimination against the lower ranks of enlisted personnel. Also, there is evidence that this jurisdiction had no requests by enlisted accused, other than in this case, for enlisted court members since October 1962. There is no evidence of how many, if any, requests were made in previous periods. Consequently, there is little or no basis for an inference of arbitrary discrimination from the fact of non-appointment of lower ranks over a long period of time. Cf. Hill v Texas, 316 US 400, 86 L ed 1559, 62 S Ct 1159 (1942). Taken as a whole, and considered in the light most favorable to the accused, the statistics do not establish a policy or predilection to exclude lower ranks from consideration for court membership, without regard to the qualifications established by the Uniform Code.
Turning to the particular method of selection in this case, Government counsel contend the accused’s evidence fails to show any impropriety by the convening authority. They argue that there is a vast and vital difference between the list of the prospective court members submitted by the staff judge advocate and the actual selections by the convening authority. They say that the convening authority’s request for an enlisted man not on the list shows he “did not regard [it] as binding.” If the convening authority himself had no desire to discriminate arbitrarily against the lower ranks, discrimination by those charged with the responsibility for preparation of the list of eligibles would nevertheless vitiate the selection process. Glasser v United States, 315 US 60, 86 L ed 680, 62 S Ct 457 (1942); United States v Dennis, 183 F2d 201, supra, at pages 217-218. We must, therefore, consider appellate defense counsel’s contention that the list of eli-gibles was invalid because those on the list were selected by the deliberate and blanket exclusion of all but senior non-commissioned officers. Such exclusion, they say, however well-intentioned it may have been, undermines the integrity of the courts-martial system. See Thiel v Southern P. Co., supra.
The evidence does not show what enlisted ranks were contemplated by the staff judge advocate as constituting senior noncommissioned officers. Appellate defense counsel impress upon us the fact that of four enlisted men on the court, the lowest grade appointed was an E-7. There were, however, eight to ten names on the list, and we [39]*39are not informed of the rank of the unselected eligibles. One or more of them may have had a lower rank than E-7. Still, we need not determine the precise rank separating the senior noncommis-sioned officer from other enlisted personnel. Whatever the cutoff point, undeniably some groups of otherwise eligible persons were not considered by the staff judge advocate in the initial selection. Was this so reprehensible as to invalidate his method?
Gross population figures are generally recognized as not being useful for the purpose of determining qualified veniremen. United States v Flynn, 106 F Supp 966, 972 (SD NY) (1952); United States v Shannabarger, 19 F Supp 975, 978 (WD Mo) (1937), ruling sustained in Walker v United States, 93 F2d 383 (CA 8th Cir) (1937). Some method of weeding out from the general population is essential. Every method involves a choice which will exclude part of the general community. In fact, normal statutory standards of eligibility such as age, literacy, and mental health automatically eliminate a part of the general population. Beyond the specific statutory exclusions, a method of selection which leaves out part of those nominally within the scope of eligibility is not necessarily unlawful. The use of voter registration lists as sources for eligibles has consistently been upheld, notwithstanding that qualified nonvoters are thereby automatically excluded. Gorin v United States, 313 F2d 641 (CA 1st Cir) (1963), cert den 374 US 829, 10 L ed 2d 1052, 83 S Ct 1870 (1963); United States v Flynn, supra. Similarly, telephone directories are valid selection sources, although they exclude those who may be qualified for jury service, but are too poor, or are unwilling, to have telephones. United States v Van Allen, 208 F Supp 331 (SD NY) (1962). The gloss history has written on the Magna Carta provision that no “Freeman shall be taken . . . but by lawful Judgment of his Peers” does not demand that the triers of the facts come exclusively from the identical group to which the accused belongs. Without attempting to analyze separately the multitude of cases on the subject, it would appear that the important question is whether the standard for selection is relevant to the statutory bases for eligibility as a juror. An irrelevant reason cannot be used to exclude a substantial group of otherwise qualified persons because it deprives the jury system “of the broad base it was designed ... to have in our democratic society.” Ballard v United States, 329 US 187, 195, 91 L ed 181, 67 S Ct 261 (1946). The rule was exemplified in the Thiel case, supra, which struck down a system of selection that excluded all who earned their livelihood on a daily basis. The Supreme Court noted that “the pay period of a particular individual is completely irrelevant to his eligibility and capacity to serve as a juror.” Thiel v Southern P. Co., 328 US 217, supra, at page 223. See also United States v Henderson, 298 F2d 522, 525 (CA 7th Cir) (1962), cert den 369 US 878, 8 L ed 2d 280, 82 S Ct 1150 (1962), in which the Court of Appeals for the Seventh Circuit described the rule as prohibiting exclusion of a substantial group on the basis of “irrational or self-imposed standards.”
A method of selection which uses criteria reasonably and rationally calculated to obtain jurors meeting the statutory requirements for service is proper. Such a system does not threat-' en the representative nature of the panel. Over a defense objection, for example, that the selection system unfairly excluded members of the lower economic brackets, a United States District Court sustained the blanket exclusion of loafers and hangers-on, on the ground it was reasonably apparent such persons lacked the statutory requirements that jurors be sober, intelligent, and of good reputation. United States v Shannabarger, supra, at pages 977-978. In United States v Flynn, 106 F Supp 966, supra, at pages 978-979, the defendants contended the method of selection discriminated against manual workers. There, a prospective juror was excluded if the qualification questionnaire sent to him by the clerk’s office was returned incomplete or with misspellings. The court held that these [40]*40deficiencies in the questionnaire bore directly on the statutory requirements that jurors be able to read and write, and that they be intelligent and well-informed.
We may take judicial notice that many enlisted persons below the senior noncommissioned ranks are literate, mature in years, and sufficiently judicious in temperament to be eligible to serve on courts-martial. It is equally apparent, however, that the lower enlisted ranks will not yield potential court members of sufficient age and experience to meet the statutory qualifications for selection, without substantial preliminary screening. It is permissible to anticipate, therefore, as did the staff judge advocate in this case, that the senior ranks will more readily provide a large number of persons possessing the varied qualities enumerated in the Uniform Code. In fact, the discussions of Article 25 in the hearings on the Code, which we quoted partially earlier, show a general understanding that the relationship between the prescribed qualifications for court membership, especially “training, experience, and length of service,” and seniority of rank is so close that the probabilities are that those in the more senior ranks would most often be called upon to serve. House Hearings, supra, at page 724; see also Hearings before Senate Armed Services Committee on S. 857 and H. R. 4080, 81st Congress, 1st Session, page 183. In the civilian community, a preference for certain voting districts as potentially more fruitful sources of eligible jurors is not exclusionary discrimination. United States v Dennis, supra. Reliance upon a standard of selection which is directly and reasonably calculated to obtain persons with the qualifications prescribed by law does not vitiate the selection system. All enlisted listed persons may be eligible for membership on courts-martial; but not all enlisted ranks must, or for that matter can, be represented on any one court-martial. The Uniform Code requires a choice based upon a variety of qualities, not, as the staff judge advocate pointed out, “willy-nilly” recourse to the routine duty roster.
Appellate defense counsel argue that senior noncommissioned officers are to be distinguished from all other enlisted persons in that they have a predilection to convict. No evidence is presented or offered to support that contention. And we reject summarily, as obnoxious to the Uniform Code and the traditions of American justice, the assumption that a senior noncommissioned officer would violate his oath to decide the cause impartially, because he is afraid of, or desires to curry favor with, the officer-members of the court. Our experience, and our convictions, are to the contrary.
Career enlisted persons are no more inclined or likely to prejudge an accused, or to treat him with greater severity, than are career officers. This is not to say that all persons, commissioned and noncommissioned, are always free from fixed ideas and attitudes which may predispose them unfavorably toward an accused. Some individuals may be biased, actually or apparently, and are, therefore, subject to challenge. United States v Drain, 4 USCMA 646, 16 CMR 220; see also United States v Hedges, 11 USCMA 642, 29 CMR 458. Disqualification of an individual, however, does not vitiate the process by which the court members were selected. Here, the only purpose in looking to the senior noncom-missioned ranks was to obtain persons possessed of proper qualifications to judge and sentence an accused. There was no desire or intention to exclude any group or class on irrelevant, irrational, or prohibited grounds. In short, the evidence leaves no room to doubt that the selection process was designed only to find enlisted men qualified for court service. The senior noncommis-sioned ranks provided a convenient and logically probable source for eligibles. To refer first to those ranks for prospective members is not an impermissible choice. United States v Dennis, supra.
[41]*41[40]*40We turn to the intentional selection of a Negro to serve as a court member. [41]*41Complaints about color or race in the selection of jurors normally deal with the exclusion of qualified persons solely on such irrelevant and prohibited bases. See Annotation, “Violation of constitutional rights of defendant in criminal case by unfair practices in selection of grand or petit jury,” 82 L ed 1053. However, in Collins v Walker, 329 F2d 100 (1964), the Court of Appeals for the Fifth Circuit granted a writ of habeas corpus on the ground the accused, a Negro, was unlawfully discriminated against when the panel of twenty grand jurors which indicted him was so organized as deliberately to include six Negroes. The court reasoned that the intentional inclusion of Negroes constituted “discrimination against . . . [the accused] because of his race or color.” Id., at page 105. With due respect to the learning and experience of the Court of Appeals, we think it misapprehended the fundamental difference between inclusion of a member of a particular group for the purpose of obtaining a fair representation of a substantial part of the community, and exclusion of members of that group so as to reduce the representational character of the jury. In Avery v Georgia, 345 US 559, 562, 97 L ed 1244, 73 S Ct 891 (1953), which was relied upon by the Court of Appeals, the Supreme Court criticized the practice of using a white ticket to designate a prospective white juror, and a yellow ticket to indicate a Negro juror. However, the criticism was related to the established fact that no Negroes had been selected for service over an extended period of time, although they numbered five percent of the jury list. The flagging of the tickets, together with the long continued failure to select a single Negro for service, was held to establish a prima facie case of exclusion of Negroes from jury duty. It was exclusion, not inclusion, that vitiated the selection process. In Dow v Carnegie-Illinois Steel Corporation, 224 F2d 414 (CA 3d Cir) (1955), cert den 350 US 971, 100 L ed 842, 76 S Ct 442 (1956), the clerk deliberately tried to place more than one Negro juror on each panel. To achieve that purpose, the cards of eligible jurors were marked to show those who were Negro. The court pointed out that, unlike Avery, which was a case of exclusion, the inclusion of Negroes on the jury was designed “to insure a fair representation” of that class, and was, therefore, proper. Dow v Carnegie-Illinois Steel Corporation, 224 F2d 414, supra, at pages 425-426. Accord: United States v Dennis, 183 F2d 201, supra, at page 223; United States v Forest, 118 F Supp 504 (ED Mo) (1954). If deliberately to include qualified persons is discrimination, it is discrimination in favor of, not against, an accused. Equal protection of the laws is not denied, but assured. We hold, therefore, there was no error in the deliberate selection of a Negro to serve on the accused’s court-martial.
The decision of the board of review is affirmed.