OPINION OF THE COURT
COOK, Judge:
By Certificate for Review1 and a Petition for Extraordinary Relief in the Nature of Mandamus and Appeal from Adverse Decision of the United States Navy Court of Military Review,2 the Government challenges the legality of a ruling by the trial judge of a general court-martial which rejected a command determination that a military lawyer requested by the accused under Article 38(b), Uniform Code of Military Justice, 10 U.S.C. § 838(b), was unavailable to serve as accused’s individual military counsel. The issues were briefed and argued, along with a motion by the respondent to dismiss the Certificate for Review.
I
THE MOTION TO DISMISS THE CERTIFICATE FOR REVIEW
Under Article 67(b)(2) and (d), UCMJ, 10 U.S.C. § 867(b)(2) and (d), the Judge Advo[103]*103cate General of a service is empowered to order sent to this Court “all cases reviewed by a Court of Military Review” for review of “issues raised by him.” In substance, Judge Redding contends that a case within the phrase “cases reviewed” means one that has been tried in an inferior tribunal of the military justice system — a court-martial— and has resulted in a conviction and approval by the requisite command authority, with a sentence that requires referral to the Court of Military Review under Article 66(b), UCMJ, 10 U.S.C. § 866(b), or is a court-martial conviction reviewable by the Judge Advocate General and referred by him to the Court of Military Review, as provided by Article 69, UCMJ, 10 U.S.C. § 869. Since the proceeding for extraordinary relief was initiated directly in the Court of Military Review, Judge Redding maintains that the court’s disposition of it was a decision in the first instance, not a review of a court-martial adjudication.
As Judge Redding does not oppose the Government’s right to appeal the Court of Military Review’s decision and the issues of the appeal comprehend those of the Certificate, a favorable decision on his motion to dismiss would not affect review of the merits. That circumstance would, normally, incline us to pass over the motion. See United States v. Tavares, 10 U.S.C.M.A. 282, 283, 27 C.M.R. 356, 357 (1959). However, the increasing number of proceedings for extraordinary relief, in the service appellate courts manifests a need to determine whether the certificate authority provided by Article 67 extends to an application for extraordinary relief from a court-martial action at the command level that is not subject to the regular review prescribed by the Code. In this situation deferral of decision merely to conserve judicial time would be inappropriate.
Under the Uniform Code, “judicial or quasi-judicial” courts-martial actions are taken at three levels: the command or trial level; the review level of the accused’s service; and in this Court. United States v. Reeves, 1 U.S.C.M.A. 388, 390, 3 C.M.R. 122, 124 (1952). Viewing the word “review” in the light of courts-martial practice previous to the Uniform Code, it unquestionably meant the examination of the record of a court-martial in which the accused had been tried and convicted. That meaning is plainly reflected in the word as it appears in the Uniform Code3 and in the Manuals for Courts-Martial4 promulgated by the President since the Code’s enactment. The definition of the term “reviewing authority” in dictionaries of military terms in common use after enactment of the Code reflects that meaning. For example, Dahl and Whelan, The Military Law Dictionary 138 (1960), defines a reviewing authority as a “[p]erson or appellate agency who must approve and affirm the findings and sentence of a court-martial before sentence may be carried out.” See Dictionary of United States Army Terms 451 (AR 310-25, June 1, 1972); The United States Air Force Dictionary 442 (1956); and The New Military and Naval Dictionary 219 (1951). However, since shortly after the Code became operative, increasingly, persons have sought extraordinary relief from court-martial actions at the trial level that are unreachable through the regular channels of review. See generally Soriano v. Hosken, 9 M.J. 221, 224 (C.M.A.1980) (Cook, J., dissenting), and McPhail v. United States, 1 M.J. 457 (C.M. A.1976). As such applications proliferated in the courts of review, this Court added new rules of practice for an appeal from an adverse determination. Later, the Court formally ruled that Courts of Military Review are “empowered to provide extraordi[104]*104nary relief.” Dettinger v. United States, 7 M.J. 216, 219 (C.M.A.1979). This proceeding provides the first occasion to consider whether final action by a Court of Military Review on a petition for extraordinary relief from a trial court ruling constitutes a “case” reviewed within the meaning of Article 67(b)(2) and qualifies the proceedings for certification to this Court by the Judge Advocate General. We now hold that proceedings of the kind in issue are certifiable.
Conceptionally, a proceeding for extraordinary relief is separate from a court-martial trial in which a conviction has resulted. Such a proceeding may concern issues wholly unrelated to guilt. In Fleiner v. Koch, 19 U.S.C.M.A. 630 (1969), for example, a writ of prohibition was granted by this Court to prevent trial of the petitioner for an offense over which the military had no jurisdiction. Furthermore, the standards for award of relief on appellate review of a court-martial conviction are different from those governing extraordinary relief. Dettinger v. United States, supra at 217. Still, the juristic process of examining trial proceedings of a conviction subject to review as prescribed by the Uniform Code is the same as that required as regards a trial forum action that is subject to scrutiny by a higher court on application for extraordinary relief. In both instances, the process qualifies as a “review” of what was done in the trial forum, as that word is commonly understood.
Turning to whether the proceedings here constitute a “case,” we note at the outset that the word was variable meanings, depending upon the context of its use.5 As used in Article 67(b)(3), it does not include “an interlocutory, nonappealable order.”6 An erroneous determination that requested counsel is unavailable does not preclude a court-martial from proceeding with the trial; in other words, the determination does not deprive the court-martial of jurisdiction. United States v. Johnson, 23 U.S.C.M.A. 148, 48 C.M.R. 764 (1974). See Soriano v. Hosken, supra at 225 (Cook J., dissenting), and United States v. Batts, 3 M.J. 440 (C.M.A.1977). In the event of conviction, however, the accused can, on appellate review, assert the adverse determination as error justifying reversal of his conviction. United States v. Quinones, 1 M.J. 64 (C.M.A.1975). As to an accused, therefore, a determination of unavailability is interlocutory in nature. See United States v. Best, 6 U.S.C.M.A. 39, 44, 19 C.M.R. 165, 170 (1955). However, the situation is different when the trial judge dismisses the charges, or takes other action that effectively precludes prosecution of them, because he concludes that a command determination of unavailability was wrong. Such action ends court-martial proceedings on the charges; it is, therefore, not an intermediate or interlocutory order but a final decree.
Without setting forth all the proceedings that followed the initial determination by Judge Redding that the commander of the requested counsel had erred in declaring him unavailable, it is clear, as the assistant trial counsel argued on a motion to rescind the judge’s initial action, later rulings “operate[d] ... as an effective curtailment and permanent forestalling” of the prosecution. Considering the accused’s right to a speedy trial, dismissal was predictable and imminent; the posture of the proceedings, therefore, was tantamount to “a final disposition of the case.” United States v. Knudson, 4 U.S.C.M.A. 587, 595, 16 C.M.R. 161, 169 (1954) (Brosman, J., concurring in the result opinion). In these circumstances, the Government was not required to wait for affixation of the stamp of dismissal; believing that Judge Redding had already exceeded his power as a trial judge, it could properly apply to the Court of Military Review for an extraordinary writ to compel him to confine his judicial orders within permissible bounds. We entertain no doubt, therefore, that, in reviewing the proceedings before Judge Redding, the Court of Military Review reviewed a case [105]*105within the meaning of Article 67(b)(2), UCMJ.
A second aspect of the review processes under the Uniform Code reenforces our conclusion. A general court-martial conviction in which the adjudged sentence is insufficient to qualify the case for automatic review by the Court of Military Review under Article 66 of the Code can nonetheless be referred to the court for review by the Judge Advocate General. A case of this kind, however, is not subject to further review by this Court on petition of the accused, but it is certifiable to the Court by the Judge Advocate General. This congressional differentiation in respect to access to this Court impels the conclusion that Congress intended every court-martial proceeding considered by a Court of Military Review to be subject to certification by the Judge Advocate General. The reason is obvious — a ruling of law made by the court is important to the service generally, irrespective of the sentence imposed upon the particular accused. As this Court said in United States v. Monett, 16 U.S.C.M.A. 179, 181, 36 C.M.R. 335, 337 (1966):
Congress provided the certification process as the means of achieving certainty in, and uniformity of, interpretation of the Uniform Code in each armed force, as well as for all the armed forces.
Chief Judge Everett’s reasons are set out in his separate opinion. For myself, I believe it sufficient to point out that Rule 3(b)(2), which deals with the jurisdiction of the Court, does not say the Court will entertain petitions by accused; it declares it may “entertain petitions from adverse decisions” made by a Court of Military Review on applications for extraordinary relief, without particularizing who may be a petitioner. Similarly, Rule 15(d), id. at CIII, which deals with appeal from an adverse decision, refers only to the filing of an appeal, without any indication that the right to appeal is limited to special persons or parties.
Nothing in the language of Article 67(b)(2) suggests exceptions to the certification authority. If, despite the absence of limitation, exceptions are, as Judge Redding argues, graftable into the text, then exceptions might also be engraftable on an accused’s right to appeal to this Court from an adverse decision of the Court of Military Review rendered on an application for extraordinary relief. In material part, the language of Article 67(b)(3), which grants accused in “all cases reviewed” by a Court of Military Review the right to petition this Court for further review, is identical to that of Article 67(b)(2). When two parts of a single statutory provision use the same language, presumptively the meaning of the language in each part is the same. Established practice has never even hinted that subsection (b)(3) contains exceptions to the right of an accused to petition for review; it also argues against a conclusion that subsection (b)(2) is less comprehensive than its language indicates. For the reasons stated, we deny the motion to dismiss the certificate for review.
II
THE GOVERNMENT’S RIGHT TO APPEAL
As indicated earlier, Judge Redding does not oppose the Government’s right to appeal from the decision of the Court of Military Review on the application for extraordinary relief. Nevertheless, in his dissenting opinion, Judge Fletcher contends that the Government has no right to appeal. In his view, Rule 3(b)(2) of this Court’s Rules of Practice and Procedure (see 4 M.J. XCVII), which authorizes such appeals, contemplates only “some party other than the government.” As the cited subdivision of the Article pertains to petitions to this Court for grant of review by accused, he concludes that only an accused can appeal from an adverse decision on an application for extraordinary relief. Chief Judge Everett and I are of the opinion that the Government has the same right as an accused to such an appeal.
In Dettinger v. United States, supra, the Court expressly upheld the right of the Government to apply to the Court of Military Review for extraordinary relief. [106]*106As Judge Fletcher suggests, some of the matters referred to in Rules 25 and 26 of our current rules may be inappropriate to an appeal by the Government, but I do not see our inexactitude in formulation of the rules as a reason to deny the Government the right to appeal. I regard our rules as expressive of this Court’s intention to encourage initial application for extraordinary relief to the respective Courts of Military Review rather than to this Court and as assuring, through the unrestricted language of its empowerment provisions, that a party adversely affected by the decision of a Court of Military Review can appeal to this Court.
Ill
THE TRIAL JUDGE’S DETERMINATION AS TO THE AVAILABILITY OF REQUESTED INDIVIDUAL MILITARY COUNSEL
Charges of desertion and escape from confinement were lodged against Seaman Douglas M. Pickens and, in due course, were referred to trial by a general court-marital constituted at the United States Naval Station, San Diego, California. On Monday, April 9,1979, the case came up for trial. Before assembly of the court members, Judge Redding, the detailed judge, held an Article 39(a)7 session to conduct the standard preliminary inquiries, including that regarding accused’s representation by counsel. He was informed that Lieutenant Solomon represented the accused as detailed defense counsel. The accused told Judge Redding he had been in telephone communication with a civilian lawyer, who had said he “would” represent him, and whom the accused thought would so do, because they had effected a “satisfactory arrangement.” He also disclosed he had “put in” a request for individual military counsel. For convenience, we set out separately the proceedings as to civilian and military counsel.
A. Proceedings as to civilian counsel
The civilian lawyer was not present at the hearing. The accused had not contacted him until the previous Saturday and counsel had asked Lieutenant Solomon to request a continuance. The judge declined to rule on the request until he was furnished the information required by “Rule IV of the Court Rules that relate[d] to continuances.”8
Although trial counsel, Lieutenant Georgia L. Winstead, contended that as an accused could not have both civilian and individual military counsel9 and, therefore, accused’s representation by civilian counsel mooted the issue of individual military counsel, Judge Redding considered a defense motion for appropriate relief from the denial of accused’s request for the latter. Before the session was concluded, Lieutenant Solomon advised Judge Redding he had been unable to communicate with the civilian lawyer. Thereupon, the judge allowed him until “tomorrow morning” to submit the required Rule IV information. Whether the required matter was submitted on April 10th is not apparent.
On April 11th, the Article 39(a) session reconvened. The subject considered was the accused’s request for individual military counsel. Judge Redding ruled that the commander who denied it had “abused his discretion.” Further, the judge found that the lawyer “was, and is, reasonably available to represent the accused at this court-martial.” He continued the trial to April 26, indicating that he expected individual military counsel to “be made available a reasonable time in advance” of that date to prepare for trial. His last remarks before ending the session concerned civilian counsel. In material part, he said:
I’m going to direct the defense counsel, that you will contact the civilian counsel that the accused appears to have retained. Advise him of the time and date this court will convene for the purpose of [107]*107continuing the trial in this case. And if you are unable to contact him by telephone today, you will send notification to him by mail with a certified receipt that if he is going to enter an appearance in this case to represent the accused, that he will be present and prepared to proceed with this case at 0900, on Thursday the 26th of April 1979.
After the April 11th session, trial counsel filed a motion for reconsideration of the abuse-of-discretion ruling. An Article 39(a) session was held on the morning of April 20th. At this session, trial counsel adverted to her previous contention that accused’s representation by civilian counsel precluded exercise of the right to elect representation by individual military counsel. Judge Red-ding questioned the accused to determine “just exactly what” civilian counsel’s status was.
Excerpts from the inquiry set out below 10 indicate that the accused made representations about his dealings with civilian counsel that were inconsistent with his representations at the April 9th session. Judge Redding did not call attention to the inconsistencies; instead, he remarked that it had been his “impression” that accused had merely been “negotiating” with counsel. Accordingly, he concluded it was not “necessary to get into” the effect of retention of civilian counsel on the issue of the availability of individual military counsel. Noting that the request for military counsel had been made “back in March,” he was of the opinion that whether the accused had “civilian counsel at this time” had “no bearing” upon whether the commander who denied the request had “abused his discretion”; and he, therefore, saw no “necessity for the accused to make an election at this time on civilian counsel.”
B. Proceedings as to Individual Military Counsel
As earlier indicated, at the April 9th Article 39(a) session, Judge Redding took up a defense motion for appropriate relief. The relief asked was that further proceedings be abated until the requested military lawyer was “made available,” or, alternatively, that the charges be dismissed.
Requested military counsel was Captain Clark, USMC. He was on duty as head of a tricommand Legal Assistance Office, Camp Lejeune, North Carolina. The request for him had been filed on March 14, 1979, and had been denied on March 20 by Brigadier General D. B. Barker, Commanding General of Camp Lejeune.
In his written denial, General Barker stated that “Capt[ain] Clark’s duties . . . [were] critical for” the command. Among other things, General Barker indicated the legal office had a very heavy current workload and a further increase was “anticipated ... during March and April due to [108]*108income tax work.” He represented that no “replacement” was available for the length of time Captain Clark would probably have to be in San Diego for the accused’s case. Defense counsel acknowledged that no attorney-client relationship had previously existed between Captain Clark and the accused.
We put aside interim rulings on the motion, one of which was an order directing that written interrogatories be submitted to General Baker for answer by “priority .. . message” within 24 hours of receipt. Suffice it to note that Judge Redding was informed the accused had “appealed” the denial of his request for Captain Clark “to the Commandant of the Marine Corps.” The appeal had been filed on April 5, but no decision on it had been received. Additionally, he was apprised that the accused had made “a subsequent IMC request for a Captain Thompson,” which was still “[p]ending,” but, as to that request, “the defense took the position” it would “await the final decision ... of the availability of Captain Clark from the Commandant of the Marine Corps.” Judge Redding made no comment on the pending appeal and asked for no particulars as to the request for Captain Thompson.
Judge Redding ruled that General Barker had “abused his discretion” in declaring Captain Clark not reasonably available to represent the accused. He found “in connection with that determination that Captain Clark was, and is, reasonably available.”
On Friday morning, April 20th, at another Article 39(a) session, Judge Redding considered a government request for reconsideration of his ruling. Asserting that he “reviewed all of the evidence anew,” he adhered to it.
On the day set for trial, April 26th, Judge Redding held another Article 39(a) session. He received copies of an exchange of electronic messages between the convening authority and General Barker. The convening authority had informed General Barker of Judge Redding’s reaffirmation of his ruling and requested that he declare Captain Clark available. In reply, General Barker detailed circumstances that had arisen since his last communication, which, he said, demonstrated that “Capt Clark’s absence will disrupt important .. . work” of the command. Again, trial counsel moved for reconsideration. Declaring that he had accorded the Government “adequate time” to seek review of his ruling, Judge Redding summarily denied the motion. Informed that an “appeal [was] being typed up,” he continued the “proceedings” to May 4th, at which time, he said the Government “will have the opportunity to show cause .. . why these Charges should not be dismissed.”
In the interim between April 26th and May 4th, the Government applied to the United States Navy Court of Military Review for a restraining order to prevent dismissal of the charges. The Court of Military Review denied the application on the ground that Judge Redding’s rulings were still interlocutory in nature; but the court reserved to the Government the right to apply for relief from any future order that satisfied the “criteria” for exercise of the court’s extraordinary writ authority.
Responding to Judge Redding’s oral order to show cause why the charges should not be dismissed, Lieutenant Kelley, the assistant trial counsel, called attention to a declaration in the Court of Military Review’s order to the effect that the Government had persuasively demonstrated that dismissal of the charges “would be inappropriate as a matter of law.” Judge Redding ordered the proceedings “abated,” and removed the case from the trial docket.
After the May 4th Article 39(a) session, Lieutenant Kelley inquired of General Barker whether he could anticipate Captain Clark’s availability in the foreseeable future. General Barker advised him that the need for Captain Clark was even more imperative because the command had become responsible for the investigation of “an extraordinarily complex case.” He expected that the investigation would “severely tax all available] lawyer resources for months.” Acknowledging his appreciation of the [109]*109“duty to cooperate with courts in military] justice matters,” General Barker stated that he could not “disrupt other important work of” his command by releasing Captain Clark for detail as accused’s counsel.
Informed of the latest message from General Barker, Judge Redding held an Article 39(a) session on May 14. He stated he had again examined the transcripts of the various proceedings, and he “reaffirmed” the ruling and his order removing the case “from the trial docket” and abating the proceedings “until further notice of the Court.”
As we noted in Part I, the Government filed a Petition for Writ of Mandamus in the United States Navy Court of Military Review. On December 21, 1979, the court denied it. In its opinion, the court declared that Judge Redding’s ruling overturning General Barker’s determination of Captain Clark’s unavailability “was erroneous” because he had “implicitly substituted his judgment for that of General Barker,” instead of applying the legal standard for review of the General’s discretion.11 United States v. Redding, 8 M.J. 719, 722 (N.C.M.R. 1979). Nevertheless, it denied the Government relief on the supposition that, under Dettinger v. United States, supra at 222-224, it lacked judicial authority to direct Judge Redding to correct his mistake.
Following the court’s decision, Judge Redding held additional Article 39(a) sessions to consider disposition of the case. On July 15,1980, he ordered the Government to show cause by August 4 why the charges should not be dismissed. Before that date, the Government obtained from this Court a stay of further proceedings. 9 M.J. 253 (1980).
IV
IMPROPER DENIAL OF AN ACCUSED’S REQUEST FOR INDIVIDUAL MILITARY COUNSEL DOES NOT JUSTIFY DISMISSAL OF THE CHARGES AGAINST HIM
“Proper application of the [correct] standard” for review of General Barker’s determination of the unavailability of Captain Clark, said the Court of Military Review, “should have led ... unerringly to the conclusion that General Barker had not abused his discretion.” United States v. Redding, supra at 722. But, as earlier noted, the court believed that, under Dettinger, it could not overturn the judge’s decision. We conclude that the court was mistaken.
In Dettinger, the trial judge dismissed the charges referred to trial on the ground the accused had been denied a speedy trial, as prescribed by an Air Force Manual. The Government petitioned the Air Force Court of Military Review for extraordinary relief from the order of dismissal. The court held that the judge’s order was an “usurpation of power” and set it aside. The accused challenged the decision in this Court and we reversed it. We held that when a trial judge performs a discretionary act within the bounds of his legal authority, a superior tribunal will not, in the exercise of its extraordinary writ powers, substitute its own discretion for that of the trial judge. Id. at 224. To determine whether dismissal of the charges was a lawful remedy for the deprivation suffered by the accused, the Court examined the constitutional and statutory provisions as regards denial of a speedy trial. For violation of the constitutional right to a speedy trial, the sole remedy is dismissal of the charges. Strunk v. United [110]*110States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). The same sanction is provided by Article 10, UCMJ, 10 U.S.C. § 810, for the Government’s failure to take “immediate steps ... to try” an accused who has been placed in arrest or confinement; and that provision has been scrupulously enforced by this Court. United States v. Henderson, 1 M.J. 421 (C.M.A. 1976); United States v. Burton, 21 U.S.C. M.A. 112, 44 C.M.R. 166 (1971). The Air Force Manual was silent as to the allowable sanction for the Government’s violation of the time limits it provided for prosecution of court-martial charges. Observing that the “declared purpose of the Air Force Manual ... [was] to implement the general law on prompt disposition of a court-martial matter,” and that no “particularftzed] remedy” was specified for a violation of the Manual provisions, as in United States v. Lasker, 481 F.2d 229 (2d Cir. 1973), cert. denied, 415 U.S. 975, 94 S.Ct. 1560, 39 L.Ed.2d 871 (1974), the Court concluded that “no violation of statute or decisional law” resulted from the trial judge’s invocation of “the usual remedy for violation of prescriptions for prompt disposition of a case.” Id. at 223-24.
The remedy for denial of the right to counsel is entirely different. Dismissal of charges for even a “deliberate” violation of the constitutional right to counsel “is plainly inappropriate.” United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). The “remedy characteristically imposed,” said the Supreme Court — and only if the deprivation cannot be disregarded as “harmless error,” —is to order a rehearing. Id. at 668. When the Government is constitutionally obligated to provide counsel, the accused does not have a right to select counsel of his own choice. Military practice, however, grants an accused the privilege of selecting his own counsel subject to the requirement that counsel be reasonably available for detail. Articles 32(b) and 38(b), UCMJ, 10 U.S.C. §§ 832(b) and 838(b), respectively. Unlike Article 10, as regards speedy disposition of charges, Article 38(b) does not authorize dismissal of the charges for a mistaken determination that requested military counsel is not reasonably available to represent the accused at trial. The Manual for Courts — Martial, United States, 1969 (Revised edition), particularizes some forms of relief, but also does not mention dismissal of the charges. Consequently, unless judicial precedents establish dismissal as an allowable remedy for deprivation of this statutory right, Judge Redding’s action is completely outside the established legal framework that surrounded the order of dismissal in the Dettinger case. Instead of precluding inquiry into the legitimacy of the power claimed by Judge Redding, the Dettinger opinion commands it. See Soriano v. Hosken, supra at 224.
Nothing in the Uniform Code indicates who decides whether requested counsel is reasonably available. However, the President has directed that the commander of requested counsel make the initial determination. Where, as here, requested counsel is not a member of the “immediate command” of the convening authority, the request is forwarded for determination by the “commanding officer ... of the organization ... with which the requested counsel is on duty.” Para. 485(1) and (2), 1969 Manual, supra. Since that direction is not contrary to, or inconsistent with, the Uniform Code, and, is within the President’s authority to prescribe appropriate procedural rules under Article 36, UCMJ, 10 U.S.C. § 836, it has the force of law. United States v. Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105 (1962).
The Uniform Code is also silent as to what an accused can do if he believes himself wronged by a denial of his request. The President provided for that contingency, and this Court has explicated his instructions.
Paragraph 485, Manual for Courts — Martial, United States (1951), was in effect when the Uniform Code became operative. It provided that a determination of unavailability by requested counsel’s commander was “subject to ... appeal” to the “next superior authority.” The provision, how[111]*111ever, did not indicate how an accused could be assured of judicial review of the correctness of an adverse command determination. To bridge the void, this Court fashioned an appropriate procedure. United States v. Cutting, 14 U.S.C.M.A. 347, 34 C.M.R. 127 (1964). The declared purpose of the procedure was to “preserve the issue [of availability of counsel] for ultimate appellate scrutiny,” if review was “necessary.” Id. at 351, 34 C.M.R. 131.
Review of a determination of unavailability is obviously not “necessary” if accused is found not guilty. However, if accused is convicted, appellate scrutiny of the denial of requested counsel is possible only when all material facts are in the record. To achieve that end, the Court said in United States v. Cutting, supra at 352, 34 C.M.R. at 132:
[T]he case before us teaches the need to record the action of appropriate officers on accused’s request together with any reason for its refusal. Only then will this Court and other agencies be able to make an enlightened decision concerning its disposition before or at trial. Truly, knowledge judicially set down is the soundest basis for informed action and when it is absent, we are faced with the unsatisfactory alternatives of reversing in order to allow orderly development of the facts or categorically affirming a serious penalty in light of what may fairly prove to be an improper ruling concerning a fundamental right. All this can be avoided by simply making the proceedings part of the transcript when, as here, the issue arises.
Thus, like the Uniform Code, the 1951 Manual did not authorize dismissal of the charges for an improper determination of the availability of requested counsel. And Cutting does not suggest it is an allowable remedy for a perceived violation of the accused’s statutory right.
Not long after Cutting, the Court denied relief for an alleged improper denial of requested counsel because, at trial, the accused had not raised the issue. United States v. Mitchell, 15 U.S.C.M.A. 516, 36 C.M.R. 14 (1965). In its opinion, the Court noted that raising the issue at trial can avoid “meaningless proceedings and unnecessary remedial steps.” The Court pointed out that the trial judge was a proper “functionary from whom relief should be sought when a request for special counsel has not been honored.” Id. at 520, 36 C.M.R. at 18. Again, however, the Court did not identify dismissal of the charges as an allowable remedy for the error.
Several years after Cutting and Mitchell, the President promulgated the current Manual. Paragraph 48 of the new Manual carries forward the right to appeal from an adverse command determination of unavailability of requested counsel to the “next higher commanding officer or level of supervision,” other than that at the departmental level. Also, like its predecessor, new paragraph 48 contains no language stating or implying that a facially erroneous determination of unavailability justifies dismissal of the charges. Two kinds of actions by a trial judge are specified in the 1969 Manual which were not in the 1951 Manual. First, the 1969 Manual provides that the pendency of an appeal from an adverse determination is “a proper ground for postponement or continuance of the trial.” Secondly, responding to the Court’s opinion in Cutting,12 the 1969 Manual directs that the accused’s request and the adverse actions thereon “shall be made a matter of record and be included with the record of trial.” Nothing suggests that a different procedure applies where the adverse determination is facially insufficient. The inference, therefore, is that while the trial judge can take a number of actions to insure that a complete record of the matter is included in the record of trial, he cannot dismiss the charges without a trial because the accused had been denied military counsel of his choice.
[112]*112Cutting noted that the purpose of obtaining the record of accused’s request and the action thereon is to “preserve” the issue for “appellate scrutiny.” In United States v. Quinones, supra, the Court held that denial of accused’s request was error, but the Court did not dismiss the charges for that reason. A rehearing, the Supreme Court said in the Morrison case, is the “characteristically imposed” remedy for a denial of counsel. In United States v. Batts, supra, the accused contended he had been deprived of his right to individual civilian counsel, within the meaning of Article 38(b), because his Philippine lawyer was not also a member of an American bar. ■ The Court assumed that, under the Article, civilian counsel was disqualified from acting for the accused, but it held that the error was not “jurisdictional” and could be disregarded because it did not prejudice the accused as he was effectively represented by appointed defense counsel who had been retained by the accused as “associate counsel.” 3 M.J. at 441.
In United States v. Morrison, supra, 101 S.Ct. at 668, the Supreme Court indicated that a claim of deprivation of counsel is “subject to the general rule that remedies should be tailored to the injury suffered ... and should not unnecessarily infringe on competing interests.” As Batts, Quinones, and Cutting demonstrate, a balance of competing interests is involved in a decision as to the availability of individual counsel. On the one hand is the need the military commanders perceive for the services of the requested counsel to accomplish the military mission; on the other is the accused’s desire for that particular lawyer. To throw into the balance on the side of the accused the prospect that charges will be dismissed in advance of trial if the commander mistakes his assessment of the needs of his command impresses us as being contrary to the limitation Congress imposed on the accused’s right to select a lawyer of his own choice. As the right is not absolute and an improper denial of it can be disregarded because of absence of prejudice to the accused, dismissal of the charges is an ill-suited remedy for the injury. We hold, therefore, that a trial judge has no authority to dismiss charges referred to trial, or otherwise prevent further proceedings in the case, because he concludes that the command determination of nonavailability is so wrong as to constitute an abuse of discretion.
We answer in the negative so much of the certified question as asks whether the Court of Military Review was “correct in determining that it lacked authority to grant” extraordinary relief and so much of issue I of the Government’s Petition for Extraordinary Relief, which, similarly, asks whether the Court of Military Review “was correct as a matter of law when it held that ‘the extraordinary relief requested by the United States is not within ... [its] power to grant.’ ” We return the record of the proceedings to the Judge Advocate General of the Navy for submission to the Court of Military Review for further action consistent with our decision.