Opinion of the Court
Quinn, Chief Judge:
A general court-martial convicted the accused of three offenses in violation of the Uniform Code of Military Justice. On this appeal, he challenges the validity of the findings of guilty as to one of the offenses on the ground that the deposition of a Government witness was taken under circumstances depriving him of the right to representation by military counsel of his own choice.
When the charges were investigated under Article 32 of the Uniform Code, in March 1969, the accused requested counsel. The command was unable to provide a lawyer from its own staff because all were engaged, but it obtained Captain Mainelli, a judge advocate of another unit stationed in the same area. Mainelli was accepted by the accused and represented him at the investigation. On April 18, the charges were referred to trial. The appointing order of the court-martial designated Captain Menson as defense counsel. On April 19, the case was assigned for trial on April 27, but emergency leave of the law officer resulted in a postponement to May 13. A further postponement was apparently granted for reasons not evident in the record.
The deposition in issue was taken on May 12. The record does not indicate when it was determined that its taking would be necessary, but it is clear that the witness was to leave the area on May 16, and depart Vietnam by May 18. About 4:00 p.m. of the previous day, the accused submitted a request that Captain Mainelli “represent . . . [him] in . . . [his] trial.” Captain Mainelli was no longer in the area, but at Cam Ranh Bay.
At the “very minute” of receipt of the accused’s request for Captain Mainelli, the chief of military justice of the command telephoned Captain Mainelli at Cam Ranh Bay to advise him of it and of the impending deposition. Mainelli indicated that he did not “think” he would be available for appointment as defense counsel, and in any event, he could not attend the deposition. He suggested that, until his own command could make a formal determination as to his availability, Captain Menson “stand in for” him because Menson had “fully discussed the case” with the accused and knew “the questions . . . to be asked.”
Before the deposition, Captain Men-son and the accused were informed of Captain Mainelli’s response to the accused’s request. Nevertheless, at the deposition, the accused contended that, [361]*361since he had asked for Captain Mainel-li, Menson was not his “proper counsel,” and he wished “to be excused” from attending1 the deposition. He admitted that if Captain Mainelli had informed him “sort of person-to-person” it was agreeable to him that Men-son continue as defense counsel for the deposition, Menson would be “acceptable” to him; as the matter then stood, however, he did not “feel secure with” Captain Menson and he did not want to be represented by him. The deposition officer noted the accused’s objection but continued with the deposition, and Captain Menson actively participated in it by cross-examining the witness.1
On May 17, the request for Captain Mainelli’s appointment as defense counsel was formally denied because of his unavailability. On the same day, Captain Menson, still acting as defense counsel, requested a delay in trial in order to afford the accused an opportunity to obtain civilian counsel. The request was granted and trial was postponed to June 19. In the interim, the accused participated, without objection, in two other depositions, with Captain Menson as his counsel. A further postponement, at the defense request, delayed trial until July 19. At that time, the accused appeared with Captain Menson as his counsel. Examined by the law officer, he indicated he knew his right to representation by individual military counsel and civilian counsel, but he was satisfied with Captain Menson and desired to be represented by him. At an appropriate point in the proceedings, Captain Menson objected to the admission into evidence of the deposition on the ground that in its taking the accused had been deprived of his right to military counsel of his choice.
Captain Menson’s appearance as defense counsel at the other depositions and at the trial led the Government to challenge the accused’s good faith in requesting representation by Captain Mainelli, at the May 12th deposition. The Court of Military Review rejected the challenge. We accept that finding as determinative of the issue. We also accept a finding, by the court, as amply supported by the evidence, including admissions by the accused, that a viable attorney-client relationship existed between him and Captain Men-son at the time of the deposition in issue. The question, therefore, is whether the accused was entitled to discharge Captain Menson summarily and postpone the taking of the deposition for such time as was required to obtain a decision on his request for Captain Mainelli.
Putting aside consideration of whether the sufficiency of the accused’s reason for dissatisfaction with Captain Menson is relevant to the issue (compare the principal opinion in United States v Miller, 7 USCMA 23, 28, 21 CMR 149 (1956), with United States v Donati, 14 USCMA 235, 34 CMR 15 (1963); see also United States ex rel Baskerville v Deegan, 428 F2d 714 (CA 2d Cir) (1970); United States v McMann, 252 F Supp 539 (ND NY) (1966), affirmed, 386 F2d 611 (CA 2d Cir) (1967), certiorari denied, 390 US 958, 19 L Ed 2d 1153, 88 S Ct 1049 (1968)), we start with the settled rule that grant or denial of a continuance rests in the sound discretion of the officer responsible for the proceeding, and his ruling will not be set aside unless there was a clear abuse of discretion. United States v Daniels, 11 USCMA 52, 54-55, 28 CMR 276 (1959); United States v Davis, 19 USCMA 217, 224, 41 CMR 217 (1970). We considered application of that principle in the context of a deposition in United States v Donati, supra.
In Donati, we determined that denial of a continuance was an abuse of dis[362]*362cretion and constituted prejudicial error. The circumstances of Donati, however, are substantially different from those in this case. We noted in Donati that the Government’s only justification for continuing with the taking of the deposition was “simple inconvenience to it” that might result from postponement. Id., page 240. Here, the witness was due to leave the area within three days and to depart from the country under circumstances that indicated his probable unavailability for the trial. Postponement of the taking of his deposition might have resulted in irreparable harm to him and the Government, without any material benefit to the accused. As Mainelli indicated, Menson was familiar with the witness’ probable testimony and he knew “the questions . . . to be asked.” Cf. United States v Miller, supra, page 29. Even more important, Mainelli declared that he definitely could not attend the deposition and he anticipated that he would be unavailable for appointment as the accused’s counsel. A request for a continuance based upon a reason that will probably prove futile may properly be denied. Johnson v Coiner, 308 F Supp 1373 (SD W Va) (1970); United States ex rel Jackson v Follette, 425 F2d 257 (CA 2d Cir) (1970). As was noted in the principal opinion in United States v Daniels, supra, page 55, there should be no hesitancy to continue with the proceedings “if it is clear that there is little merit to be obtained from a postponement.”
On this record, we are satisfied that denial of the accused’s request for postponement of the deposition was not an abuse of discretion.
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Opinion of the Court
Quinn, Chief Judge:
A general court-martial convicted the accused of three offenses in violation of the Uniform Code of Military Justice. On this appeal, he challenges the validity of the findings of guilty as to one of the offenses on the ground that the deposition of a Government witness was taken under circumstances depriving him of the right to representation by military counsel of his own choice.
When the charges were investigated under Article 32 of the Uniform Code, in March 1969, the accused requested counsel. The command was unable to provide a lawyer from its own staff because all were engaged, but it obtained Captain Mainelli, a judge advocate of another unit stationed in the same area. Mainelli was accepted by the accused and represented him at the investigation. On April 18, the charges were referred to trial. The appointing order of the court-martial designated Captain Menson as defense counsel. On April 19, the case was assigned for trial on April 27, but emergency leave of the law officer resulted in a postponement to May 13. A further postponement was apparently granted for reasons not evident in the record.
The deposition in issue was taken on May 12. The record does not indicate when it was determined that its taking would be necessary, but it is clear that the witness was to leave the area on May 16, and depart Vietnam by May 18. About 4:00 p.m. of the previous day, the accused submitted a request that Captain Mainelli “represent . . . [him] in . . . [his] trial.” Captain Mainelli was no longer in the area, but at Cam Ranh Bay.
At the “very minute” of receipt of the accused’s request for Captain Mainelli, the chief of military justice of the command telephoned Captain Mainelli at Cam Ranh Bay to advise him of it and of the impending deposition. Mainelli indicated that he did not “think” he would be available for appointment as defense counsel, and in any event, he could not attend the deposition. He suggested that, until his own command could make a formal determination as to his availability, Captain Menson “stand in for” him because Menson had “fully discussed the case” with the accused and knew “the questions . . . to be asked.”
Before the deposition, Captain Men-son and the accused were informed of Captain Mainelli’s response to the accused’s request. Nevertheless, at the deposition, the accused contended that, [361]*361since he had asked for Captain Mainel-li, Menson was not his “proper counsel,” and he wished “to be excused” from attending1 the deposition. He admitted that if Captain Mainelli had informed him “sort of person-to-person” it was agreeable to him that Men-son continue as defense counsel for the deposition, Menson would be “acceptable” to him; as the matter then stood, however, he did not “feel secure with” Captain Menson and he did not want to be represented by him. The deposition officer noted the accused’s objection but continued with the deposition, and Captain Menson actively participated in it by cross-examining the witness.1
On May 17, the request for Captain Mainelli’s appointment as defense counsel was formally denied because of his unavailability. On the same day, Captain Menson, still acting as defense counsel, requested a delay in trial in order to afford the accused an opportunity to obtain civilian counsel. The request was granted and trial was postponed to June 19. In the interim, the accused participated, without objection, in two other depositions, with Captain Menson as his counsel. A further postponement, at the defense request, delayed trial until July 19. At that time, the accused appeared with Captain Menson as his counsel. Examined by the law officer, he indicated he knew his right to representation by individual military counsel and civilian counsel, but he was satisfied with Captain Menson and desired to be represented by him. At an appropriate point in the proceedings, Captain Menson objected to the admission into evidence of the deposition on the ground that in its taking the accused had been deprived of his right to military counsel of his choice.
Captain Menson’s appearance as defense counsel at the other depositions and at the trial led the Government to challenge the accused’s good faith in requesting representation by Captain Mainelli, at the May 12th deposition. The Court of Military Review rejected the challenge. We accept that finding as determinative of the issue. We also accept a finding, by the court, as amply supported by the evidence, including admissions by the accused, that a viable attorney-client relationship existed between him and Captain Men-son at the time of the deposition in issue. The question, therefore, is whether the accused was entitled to discharge Captain Menson summarily and postpone the taking of the deposition for such time as was required to obtain a decision on his request for Captain Mainelli.
Putting aside consideration of whether the sufficiency of the accused’s reason for dissatisfaction with Captain Menson is relevant to the issue (compare the principal opinion in United States v Miller, 7 USCMA 23, 28, 21 CMR 149 (1956), with United States v Donati, 14 USCMA 235, 34 CMR 15 (1963); see also United States ex rel Baskerville v Deegan, 428 F2d 714 (CA 2d Cir) (1970); United States v McMann, 252 F Supp 539 (ND NY) (1966), affirmed, 386 F2d 611 (CA 2d Cir) (1967), certiorari denied, 390 US 958, 19 L Ed 2d 1153, 88 S Ct 1049 (1968)), we start with the settled rule that grant or denial of a continuance rests in the sound discretion of the officer responsible for the proceeding, and his ruling will not be set aside unless there was a clear abuse of discretion. United States v Daniels, 11 USCMA 52, 54-55, 28 CMR 276 (1959); United States v Davis, 19 USCMA 217, 224, 41 CMR 217 (1970). We considered application of that principle in the context of a deposition in United States v Donati, supra.
In Donati, we determined that denial of a continuance was an abuse of dis[362]*362cretion and constituted prejudicial error. The circumstances of Donati, however, are substantially different from those in this case. We noted in Donati that the Government’s only justification for continuing with the taking of the deposition was “simple inconvenience to it” that might result from postponement. Id., page 240. Here, the witness was due to leave the area within three days and to depart from the country under circumstances that indicated his probable unavailability for the trial. Postponement of the taking of his deposition might have resulted in irreparable harm to him and the Government, without any material benefit to the accused. As Mainelli indicated, Menson was familiar with the witness’ probable testimony and he knew “the questions . . . to be asked.” Cf. United States v Miller, supra, page 29. Even more important, Mainelli declared that he definitely could not attend the deposition and he anticipated that he would be unavailable for appointment as the accused’s counsel. A request for a continuance based upon a reason that will probably prove futile may properly be denied. Johnson v Coiner, 308 F Supp 1373 (SD W Va) (1970); United States ex rel Jackson v Follette, 425 F2d 257 (CA 2d Cir) (1970). As was noted in the principal opinion in United States v Daniels, supra, page 55, there should be no hesitancy to continue with the proceedings “if it is clear that there is little merit to be obtained from a postponement.”
On this record, we are satisfied that denial of the accused’s request for postponement of the deposition was not an abuse of discretion. Bowman v United States, 409 F2d 225 (CA 5th Cir) (1969), certiorari denied, 398 US 967, 26 L Ed 2d 552, 90 S Ct 2183 (1970); Gilmore v United States, 273 F2d 79 (CA DC Cir) (1959); cf. United States v Worden, 17 USCMA 486, 38 CMR 284 (1968). It follows that the deposition was properly admitted into evidence at trial.
The decision of the United States Army Court of Military Review is affirmed.
Judge Darden concurs.