Opinion of the Court
FLETCHER, Chief Judge:
A general court-martial convicted1 the appellant of six specifications of possession and sale of controlled substances charged under Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. We granted review to examine three issues:
I. WHETHER THE COURT-MARTIAL LACKED JURISDICTION TO TRY APPELLANT FOR THE OFF-BASE SALES OF MARIHUANA ALLEGED IN SPECIFICATIONS 1 AND 5 OF THE CHARGE.
II. WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO REOPEN THE ARTICLE 32 INVESTIGATION AND TO REQUIRE THE PRESENCE OF THE GOVERNMENT WITNESS, A1C TEDDY L. MONHOLLEN, AT THE ARTICLE 32 INVESTIGATION.
III. WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY THE FAILURE OF THE GOVERNMENT TO PROVIDE TRIAL DEFENSE COUNSEL WITH A COPY OF THE RECORD OF TRIAL FOR PURPOSES OF COMPLIANCE WITH THE MANDATE OF UNITED STATES V. GOODE, 23 U.S.C. M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975).
We will first address issues I and III; then issue II.
A. Issue I
All of the transactions involving the appellant and undercover agent Monhollen occurred between February 21 and March 2, 1976. Of these, appellant challenges the jurisdictional basis of two. The first transfer of marihuana, in Lompoc, California, was initially arranged in a parking lot on Vandenburg Air Force Base. Although the drug was transferred at an off-base location, full payment was made in the appellant’s on-base government quarters. These facts, viewed with a proper analysis of the criteria of Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1972), convince us that the jurisdictional prerequisite exists for court-martial prosecution. United States v. McCarthy, 2 M.J. 26 (C.M. A.1976).
However, regarding the jurisdictional contest on specification 5, the record contains insufficient factual information to employ the evaluative considerations of Relford. There is neither a clear showing of intent to commit the offense nor sufficient facts concerning the geography of negotiation. Jurisdiction must be affirmatively established by the Government. See United States v. Alef, 3 M.J. 414 n.6 (C.M.A.1977); United States v. McCarthy, supra at 28 n.2. As this burden has not been met regarding specification 5, that specification is not subject to court-martial jurisdiction and must be dismissed.
B. Issue III
The trial defense counsel was permanently reassigned to Bitburg Air Base, Germany, after trial. Although he received a copy of the post-trial review for his comments under United States v. Goode, 1 M.J. 3 (C.M.A.1975), he asserts that he was never provided a copy of the record of trial.2 His rebuttal to the review was contained in a message dated August 13,1976. The record contains a message dated August 26, 1976, which states that a copy of the Cruz record was received at the Bitburg Air Base legal office on August 16, 1976, and returned on August 26,1976. The convening authority’s [288]*288action was taken on August 16,1976. Thus, even if defense counsel had access to the record in 1976, it was of no use to him in preparing the rebuttal. There is nothing in the record to suggest that defense counsel had a copy of the record prior to preparing his rebuttal to the review dated January 25, 1977. It is asking too much to expect counsel to remember the contents of a record to which he last had access five months earlier. Accordingly, we must determine the effect of this deficiency.
Pursuant to Goode, we stated in United States v. Cruz-Rijos, 1 M.J. 429, 432 (C.M.A. 1976):
In cases in which the accused has been transferred or confined at a location different from that of his trial defense counsel, we believe the Government may satisfy the spirit of Article 54(c), while also assuring effective representation of the accused, by serving the transcript on his counsel together with a copy of the staff judge advocate’s review .
The Goode rule is eviscerated when the advocate of the accused has no opportunity to utilize the record of trial3 to determine if there are errors in the post-trial review. We are compelled to agree with the suggestion of appellate defense counsel that the record of trial is an essential tool for the proper exercise of the defense counsel’s post-trial duties. See United States v. Larneard, 3 M.J. 76 (C.M.A.1977); United States v. Palenius, 2 M.J. 86 (C.M.A.1977); ABA Standards, The Defense Function § 8.2 (1971). Accordingly, lack of access to the record prior to rebutting the second review necessitates a new review and action.
C. Issue II
The chief prosecution witness, whose testimony was sine qua non to the success of this prosecution, was specifically requested by the defense counsel on the day preceding the Article 32 investigation. This witness, Monhollen, a service person, had been taken to another military installation and his commander denied a request for his attendance, determining him unavailable ostensibly because of exigent job responsibilities, the “possibility” that unascribed threats against him would be carried out, and the five flying hours that lay between him and the situs of the Article 32 investigation. It was this third factor which the commander considered determinative in his denial of Monhollen’s appearance. Following this denial, toward the end of the investigation, the defense counsel requested a continuance to secure Monhollen’s attendance. The investigating officer denied this request and, in lieu of Monhollen’s presence, considered his sworn written statement.
We have in various cases addressed the meaning of the Article 32(b) provision for cross-examination of witnesses “if they are available.” The Code and Manual have not provided compulsory process for appearance at an Article 32 hearing; however, it has been made clear that a service person under military control may be ordered to appear under military orders.4 United States v. Ledbetter, 2 M.J. 37 (C.M.A.1976). Absent proper objection to a substantial pretrial right; the merger of that right into those at trial; and with no indication that the proceedings have in some way adversely affected appellant’s trial right, this Court is on record that appellant’s conviction should not be set aside. United States v. Mickel, 9 U.S.C.M.A. 324, 26 C.M.R. 104 (1958).
We have addressed related aspects of this issue. In United States v. Donaldson, 23 U.S.C.M.A. 293, 49 C.M.R. 542 (1975), the Article 32 investigation was improperly [289]*289convened. That timely objection was made to this defect required reversal. So, too, the denial of the key military witness at the Article 32 when requested by the defense in United States v. Ledbetter, supra at 43-4, resulted in reversal. Also, a German prosecutrix was erroneously assumed by the military judge to be unavailable in United States v. Chestnut, 2 M.J. 84 (C.M.A.1976).
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Opinion of the Court
FLETCHER, Chief Judge:
A general court-martial convicted1 the appellant of six specifications of possession and sale of controlled substances charged under Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. We granted review to examine three issues:
I. WHETHER THE COURT-MARTIAL LACKED JURISDICTION TO TRY APPELLANT FOR THE OFF-BASE SALES OF MARIHUANA ALLEGED IN SPECIFICATIONS 1 AND 5 OF THE CHARGE.
II. WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO REOPEN THE ARTICLE 32 INVESTIGATION AND TO REQUIRE THE PRESENCE OF THE GOVERNMENT WITNESS, A1C TEDDY L. MONHOLLEN, AT THE ARTICLE 32 INVESTIGATION.
III. WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY THE FAILURE OF THE GOVERNMENT TO PROVIDE TRIAL DEFENSE COUNSEL WITH A COPY OF THE RECORD OF TRIAL FOR PURPOSES OF COMPLIANCE WITH THE MANDATE OF UNITED STATES V. GOODE, 23 U.S.C. M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975).
We will first address issues I and III; then issue II.
A. Issue I
All of the transactions involving the appellant and undercover agent Monhollen occurred between February 21 and March 2, 1976. Of these, appellant challenges the jurisdictional basis of two. The first transfer of marihuana, in Lompoc, California, was initially arranged in a parking lot on Vandenburg Air Force Base. Although the drug was transferred at an off-base location, full payment was made in the appellant’s on-base government quarters. These facts, viewed with a proper analysis of the criteria of Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1972), convince us that the jurisdictional prerequisite exists for court-martial prosecution. United States v. McCarthy, 2 M.J. 26 (C.M. A.1976).
However, regarding the jurisdictional contest on specification 5, the record contains insufficient factual information to employ the evaluative considerations of Relford. There is neither a clear showing of intent to commit the offense nor sufficient facts concerning the geography of negotiation. Jurisdiction must be affirmatively established by the Government. See United States v. Alef, 3 M.J. 414 n.6 (C.M.A.1977); United States v. McCarthy, supra at 28 n.2. As this burden has not been met regarding specification 5, that specification is not subject to court-martial jurisdiction and must be dismissed.
B. Issue III
The trial defense counsel was permanently reassigned to Bitburg Air Base, Germany, after trial. Although he received a copy of the post-trial review for his comments under United States v. Goode, 1 M.J. 3 (C.M.A.1975), he asserts that he was never provided a copy of the record of trial.2 His rebuttal to the review was contained in a message dated August 13,1976. The record contains a message dated August 26, 1976, which states that a copy of the Cruz record was received at the Bitburg Air Base legal office on August 16, 1976, and returned on August 26,1976. The convening authority’s [288]*288action was taken on August 16,1976. Thus, even if defense counsel had access to the record in 1976, it was of no use to him in preparing the rebuttal. There is nothing in the record to suggest that defense counsel had a copy of the record prior to preparing his rebuttal to the review dated January 25, 1977. It is asking too much to expect counsel to remember the contents of a record to which he last had access five months earlier. Accordingly, we must determine the effect of this deficiency.
Pursuant to Goode, we stated in United States v. Cruz-Rijos, 1 M.J. 429, 432 (C.M.A. 1976):
In cases in which the accused has been transferred or confined at a location different from that of his trial defense counsel, we believe the Government may satisfy the spirit of Article 54(c), while also assuring effective representation of the accused, by serving the transcript on his counsel together with a copy of the staff judge advocate’s review .
The Goode rule is eviscerated when the advocate of the accused has no opportunity to utilize the record of trial3 to determine if there are errors in the post-trial review. We are compelled to agree with the suggestion of appellate defense counsel that the record of trial is an essential tool for the proper exercise of the defense counsel’s post-trial duties. See United States v. Larneard, 3 M.J. 76 (C.M.A.1977); United States v. Palenius, 2 M.J. 86 (C.M.A.1977); ABA Standards, The Defense Function § 8.2 (1971). Accordingly, lack of access to the record prior to rebutting the second review necessitates a new review and action.
C. Issue II
The chief prosecution witness, whose testimony was sine qua non to the success of this prosecution, was specifically requested by the defense counsel on the day preceding the Article 32 investigation. This witness, Monhollen, a service person, had been taken to another military installation and his commander denied a request for his attendance, determining him unavailable ostensibly because of exigent job responsibilities, the “possibility” that unascribed threats against him would be carried out, and the five flying hours that lay between him and the situs of the Article 32 investigation. It was this third factor which the commander considered determinative in his denial of Monhollen’s appearance. Following this denial, toward the end of the investigation, the defense counsel requested a continuance to secure Monhollen’s attendance. The investigating officer denied this request and, in lieu of Monhollen’s presence, considered his sworn written statement.
We have in various cases addressed the meaning of the Article 32(b) provision for cross-examination of witnesses “if they are available.” The Code and Manual have not provided compulsory process for appearance at an Article 32 hearing; however, it has been made clear that a service person under military control may be ordered to appear under military orders.4 United States v. Ledbetter, 2 M.J. 37 (C.M.A.1976). Absent proper objection to a substantial pretrial right; the merger of that right into those at trial; and with no indication that the proceedings have in some way adversely affected appellant’s trial right, this Court is on record that appellant’s conviction should not be set aside. United States v. Mickel, 9 U.S.C.M.A. 324, 26 C.M.R. 104 (1958).
We have addressed related aspects of this issue. In United States v. Donaldson, 23 U.S.C.M.A. 293, 49 C.M.R. 542 (1975), the Article 32 investigation was improperly [289]*289convened. That timely objection was made to this defect required reversal. So, too, the denial of the key military witness at the Article 32 when requested by the defense in United States v. Ledbetter, supra at 43-4, resulted in reversal. Also, a German prosecutrix was erroneously assumed by the military judge to be unavailable in United States v. Chestnut, 2 M.J. 84 (C.M.A.1976). Since she had not refused to testify at the Article 32 investigation, the military judge arbitrarily denied the proper motion to depose the witness. Finally, in United States v. Chuculate, 5 M.J. 143 (C.M.A.1978), we likewise perceived, in an indecent assault prosecution, a deprivation of a substantial pretrial right to cross-examination but the defense did not assert the depositional right5 and there was no adverse effect at trial. Because of the unique identification of the assailant in Chuculate, we were unable to find good reason for reversal.
In the case sub judice, the defense could have moved for deposition of the absent military witness and, in fact, did unsuccessfully move for the production of the witness. In our view this present case is governed by the rule in Ledbetter: “The significance of the witness’ testimony must be weighed against the relative difficulty and the expense of obtaining the witness’ presence at the investigation.” United States v. Ledbetter, supra at 44.
However, while the significance in the availability equation of the untimely transfer of the key prosecution witness in Led-better is paralleled in the curious transfer of Monhollen three weeks before this Article 32 investigation, unlike Ledbetter, there was no renewal at trial of the production motion. Without such motion, the merger with the cross-examination rights at trial and the absence of any perceptible adverse effect on appellant’s rights removes any basis for reversal.
The decision of the United States Air Force Court of Military Review is reversed. The finding as to specification 5 of the charge is set aside and that specification is dismissed. The action of the convening authority is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for a new review and action by a convening authority on the remaining findings and the sentence.
Judge PERRY concurs.