[114]*114Opinion of the Court
Darden, Judge:
Article 16, Uniform Code of Military-Justice, 10 USC § 816, provides in pertinent part that a general court-martial may consist of only a military judge:
“. . . [I]f before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests in writing a court composed only of a military judge and the military judge approves.
Paragraph 53cf(2)(6), Manual for Courts-Martial, United States, 1969 (Revised edition), requires that if trial by military judge alone is requested the military judge should assure himself at trial that the request was understanding^ made. “Should,” as used in the Manual paragraph cited above, we construe to express an obligation. Cf. State v La Porte, 58 Wash 2d 816, 365 P2d 24 (1961); State v Bruton, 383 SW2d 525 (Mo) (1964); Williams v Kaestner, 332 SW2d 21 (Mo) (1960); Fegan v Lykes Bros. S. S. Co., 198 La 312, 3 So 2d 632 (1941); Town of Edgewater v Liebhardt, 32 Colo 307, 76 Pac 366 (1904).
In this case the appellant submitted a request for trial by military judge alone, and it was approved. Then, pursuant to a plea of guilty, the appellant was found guilty of larceny, as charged, and sentenced by the military judge to a bad-conduct discharge, total forfeitures, confinement at hard labor for nine months, and reduction to the pay grade of E-l. After appellate review, the findings and sentence remain unchanged.
Compliance with the requirements of paragraph 53 d(2) (b), Manual, supra, is questioned in this instance since the record reveals only the military judge’s assertion that Jenkins’s request to be tried by military judge alone had been submitted and approved.
This issue is not constitutional in nature. Under the Fifth and Sixth Amendments to the Constitution, members of the armed forces do not have the right to indictment by grand jury and trial by petit jury for a capital or infamous crime. See Ex parte Milligan, 4 Wall 2 (U. S. 1866); Ex parte Quirin, 317 US 1, 87 L Ed 3, 63 S Ct 2 (1942); United States v Crawford, 15 USCMA 31, 35 CMR 3 (1964). Provisions for trial of members of the armed forces by a court and for waiver of such trial are both statutory. Article 16, Code, supra.
Attached to the record of trial is the following request:
“To: Trial Counsel
“United States of America
v.
SN PAUL E. JENKINS, USN 138 23 83
Request for Trial Before Military Judge Alone (Art. 16, UCMJ)
“I have been informed that CAPTAIN JOHN P. GLEESON, JAGC, USN is the military judge detailed to the court-martial to which the charges and specifications pending against me have been referred for trial. After consulting with my defense counsel, I hereby request that the court be composed of the military judge alone. I make this request with full knowledge of my right to be tried by a court-martial composed of (commissioned) officers (and enlisted personnel).
31 October, 1969.
(Dated)
/s/ Paul E. Jenkins
PAUL E. JENKINS
Accused
“Prior to the signing of the foregoing request, I advised fully the above accused of his right to trial before a court-martial composed of (commissioned) officers (and of his right to have such court consist of at least one-third enlisted [115]*115members not of his unit upon his request).
31 October, 1969.
(Dated)
/s/ D. A. Stewart
D. A. STEWART Defense Counsel
“Argument is (not) requested.
/s/ P. C. Turner
P. C. TURNER Trial Counsel
“I approve (disapprove) the foregoing request for trial before me alone.
31 October, 1969.
(Dated)
/s/ John P. Gleeson
JOHN P. GLEESON Military Judge.”
It is this document that is the basis for appellant’s waiver of his statutory right to be tried by members of a court. The absence of appellant’s objection to the military judge’s not assuring himself the request was understanding^ made is but a waiver of such assurance by the judge, not a waiver of the basic right itself.
Our attention has been called to the procedure prescribed by the United States Army for implementing paragraph 53 of the Manual, supra. This procedure, which is outlined in Judge Advocate Legal Service, August 28, 1969, pamphlet 27-69-21, pages 18-20, involves a recommendation that the military judge conduct an inquiry of the following type before the court is assembled:
“MJ: (To Defense Counsel) Have you discussed fully with the accused (his right to and) the implications of trial by a military judge alone?
“DC:___
“MJ: Have you delineated for him the differences between a court-martial with members and one composed of a military judge alone?
“DC:_
“MJ: (To Accused) Have you discussed the (right to and) meaning of trial by a military judge only with your counsel?
“ACCUSED:_
“MJ: Are you satisfied that you understand what it means?
“ACCUSED: _
“MJ: Do you have any questions about what you discussed with your defense counsel?
“ACCUSED: _.
“MJ: Do you understand that you may be tried by a court consisting of at least (five) (three) officers (or request to be tried before a military judge alone) ?
“ACCUSED: _
“MJ: Has it been explained to you that at your request at least one-third of a court consisting of members will be enlisted men?
“ACCUSED: _.
“M J: Do you realize that in a trial before members, two-thirds of the members, voting by secret written ballot, must concur in all findings of guilty?
“ACCUSED: _.
“MJ: Do you also understand that (two-thirds) (or) (three-fourths) of the members, voting by secret written ballot, must concur in a sentence should you be found guilty?
“ACCUSED: _.
“MJ: Now, in a trial before me alone, do you understand that I alone will determine your guilt or innocence?
“ACCUSED: _•
“MJ: Do you also understand that I alone will sentence you should you be found guilty?
“ACCUSED: _•
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[114]*114Opinion of the Court
Darden, Judge:
Article 16, Uniform Code of Military-Justice, 10 USC § 816, provides in pertinent part that a general court-martial may consist of only a military judge:
“. . . [I]f before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests in writing a court composed only of a military judge and the military judge approves.
Paragraph 53cf(2)(6), Manual for Courts-Martial, United States, 1969 (Revised edition), requires that if trial by military judge alone is requested the military judge should assure himself at trial that the request was understanding^ made. “Should,” as used in the Manual paragraph cited above, we construe to express an obligation. Cf. State v La Porte, 58 Wash 2d 816, 365 P2d 24 (1961); State v Bruton, 383 SW2d 525 (Mo) (1964); Williams v Kaestner, 332 SW2d 21 (Mo) (1960); Fegan v Lykes Bros. S. S. Co., 198 La 312, 3 So 2d 632 (1941); Town of Edgewater v Liebhardt, 32 Colo 307, 76 Pac 366 (1904).
In this case the appellant submitted a request for trial by military judge alone, and it was approved. Then, pursuant to a plea of guilty, the appellant was found guilty of larceny, as charged, and sentenced by the military judge to a bad-conduct discharge, total forfeitures, confinement at hard labor for nine months, and reduction to the pay grade of E-l. After appellate review, the findings and sentence remain unchanged.
Compliance with the requirements of paragraph 53 d(2) (b), Manual, supra, is questioned in this instance since the record reveals only the military judge’s assertion that Jenkins’s request to be tried by military judge alone had been submitted and approved.
This issue is not constitutional in nature. Under the Fifth and Sixth Amendments to the Constitution, members of the armed forces do not have the right to indictment by grand jury and trial by petit jury for a capital or infamous crime. See Ex parte Milligan, 4 Wall 2 (U. S. 1866); Ex parte Quirin, 317 US 1, 87 L Ed 3, 63 S Ct 2 (1942); United States v Crawford, 15 USCMA 31, 35 CMR 3 (1964). Provisions for trial of members of the armed forces by a court and for waiver of such trial are both statutory. Article 16, Code, supra.
Attached to the record of trial is the following request:
“To: Trial Counsel
“United States of America
v.
SN PAUL E. JENKINS, USN 138 23 83
Request for Trial Before Military Judge Alone (Art. 16, UCMJ)
“I have been informed that CAPTAIN JOHN P. GLEESON, JAGC, USN is the military judge detailed to the court-martial to which the charges and specifications pending against me have been referred for trial. After consulting with my defense counsel, I hereby request that the court be composed of the military judge alone. I make this request with full knowledge of my right to be tried by a court-martial composed of (commissioned) officers (and enlisted personnel).
31 October, 1969.
(Dated)
/s/ Paul E. Jenkins
PAUL E. JENKINS
Accused
“Prior to the signing of the foregoing request, I advised fully the above accused of his right to trial before a court-martial composed of (commissioned) officers (and of his right to have such court consist of at least one-third enlisted [115]*115members not of his unit upon his request).
31 October, 1969.
(Dated)
/s/ D. A. Stewart
D. A. STEWART Defense Counsel
“Argument is (not) requested.
/s/ P. C. Turner
P. C. TURNER Trial Counsel
“I approve (disapprove) the foregoing request for trial before me alone.
31 October, 1969.
(Dated)
/s/ John P. Gleeson
JOHN P. GLEESON Military Judge.”
It is this document that is the basis for appellant’s waiver of his statutory right to be tried by members of a court. The absence of appellant’s objection to the military judge’s not assuring himself the request was understanding^ made is but a waiver of such assurance by the judge, not a waiver of the basic right itself.
Our attention has been called to the procedure prescribed by the United States Army for implementing paragraph 53 of the Manual, supra. This procedure, which is outlined in Judge Advocate Legal Service, August 28, 1969, pamphlet 27-69-21, pages 18-20, involves a recommendation that the military judge conduct an inquiry of the following type before the court is assembled:
“MJ: (To Defense Counsel) Have you discussed fully with the accused (his right to and) the implications of trial by a military judge alone?
“DC:___
“MJ: Have you delineated for him the differences between a court-martial with members and one composed of a military judge alone?
“DC:_
“MJ: (To Accused) Have you discussed the (right to and) meaning of trial by a military judge only with your counsel?
“ACCUSED:_
“MJ: Are you satisfied that you understand what it means?
“ACCUSED: _
“MJ: Do you have any questions about what you discussed with your defense counsel?
“ACCUSED: _.
“MJ: Do you understand that you may be tried by a court consisting of at least (five) (three) officers (or request to be tried before a military judge alone) ?
“ACCUSED: _
“MJ: Has it been explained to you that at your request at least one-third of a court consisting of members will be enlisted men?
“ACCUSED: _.
“M J: Do you realize that in a trial before members, two-thirds of the members, voting by secret written ballot, must concur in all findings of guilty?
“ACCUSED: _.
“MJ: Do you also understand that (two-thirds) (or) (three-fourths) of the members, voting by secret written ballot, must concur in a sentence should you be found guilty?
“ACCUSED: _.
“MJ: Now, in a trial before me alone, do you understand that I alone will determine your guilt or innocence?
“ACCUSED: _•
“MJ: Do you also understand that I alone will sentence you should you be found guilty?
“ACCUSED: _•
“MJ: Knowing and understanding the difference between trial before members and trial before me, as explained by your defense counsel and me, do you wish to be tried before me alone?
[116]*116“ACCUSED: _
“MJ: Very well, (the request is (approved) (disapproved) (and the court is assembled.)) (the court is assembled.)”
Without intimating an opinion on whether paragraph 53d(2) (b) of the Manual requires that the military judge elicit from the accused personally a reassurance the latter’s request was understandingly made, it appears that compliance with the procedure recommended by the United States Army would abundantly satisfy the requirement of the Manual provision in question.
In this case the appellant was represented at trial by both civilian and appointed military counsel. Neither questioned the military judge’s announcement of the request or his approval of it. The request itself reflects the appellant’s awareness of its consequences. From the beginning of trial to the filing of a petition in this Court the appellant has not complained that he misunderstood the significance of his request for trial before a military judge alone, and he has not indicated he would elect trial by members of a court if the ease were reversed. Error of the kind the military judge committed here should be asserted before the case has reached this Court. The absence of such a complaint indicates a waiver. United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969).
Even if the error were not waived, to justify a reversal we would be required to determine that the substantial rights of the appellant had been prejudiced. Article 59(a), Uniform Code of Military Justice, 10 USC § 859. That an otherwise unassailable Manual provision has the force and effect of law is irrefragable. But this does not mean that the Manual provision is thereby elevated to a plane above Article 59(a), supra. In this instance the appellant was not prejudiced by the military judge’s failure to inquire regarding the appellant’s request. One indication of this is that the sentence by the military, judge was less severe than the one the appellant proposed in a pretrial agreement. Accordingly, the decision of the United States Navy Court of Military Review is affirmed.
Chief Judge Quinn concurs.