Opinion of the Court
Quinn, Chief Judge:
The Judge Advocate General of the Army certified this case for review on the following questions:
1. Was the board of review correct in its legal determination that failure to transmit the case for rehearing to the convening authority who originally referred the case to trial was contrary to the Uniform Code of Military Justice?
2. If so, was the board of review correct in its determination that such error was jurisdictional in nature which rendered the proceedings null and void?
Originally, the accused was convicted of rape, in violation of Article 120, Uniform Code of Military Justice, 10 USC § 920, by general court-martial, convened by the Commanding General, Seventh Army Support Command, Boeblingen, Germany, and sentenced to a dishonorable discharge, confinement at hard labor for fifteen years, and accessory penalties. The convening authority approved the findings and sentence. In July 1968, a board of review set aside the conviction and ordered a rehearing because of prejudicial error in the admission into evidence of an improperly obtained confession. Thereupon, the Judge Advocate General of the Army transmitted the record of trial for further proceedings to the Commanding General, Fort Leavenworth, Kansas, the officer then exercising general court-martial jurisdiction over the accused, who had been transferred to the United States Disciplinary Barracks, Fort Leavenworth.
In due course, the Commanding General, Fort Leavenworth, directed a rehearing, which was held at Fort Leavenworth on October 7, 1968. At the rehearing, the accused pleaded guilty to, and was convicted of, attempted rape. He was sentenced to a dishonorable discharge, confinement at hard labor for six years, and accessory penalties. The convening authority approved the findings of guilty, but, pursuant to a pretrial agreement with the accused, reduced the confinement to three years and nine months. On review, a board of review reversed this conviction on the ground that the trial was a nullity because the case had not been referred to the original convening authority for determination of the practicability of a retrial. See United States v Robbins, 18 USCMA 86, 39 CMR 86 (1969). The board of review authorized a second rehearing under its original mandate.
In Robbins, we were concerned with the legislative intention as to authority of this Court under Article 67 (f), Code, supra, 10 USC § 867. This case is concerned with the authority of the board of review under Article .66(e), Code, supra, 10 USC § 866. In language and general legislative purpose, the two Articles are substantially similar. We have no hesitancy in concluding, therefore, that Congress did not intend a difference in authority to order the course of the rehearing of a ease in which the original proceedings contained error precluding affirmance by the appellate tribunal. What we said in Robbins is equally applicable here:
"We believe that the Judge Advocate General erred in not referring this case to the original convening authority. The remand procedure contemplated by Article 67 (f), Code, supra, is essentially the general civilian rule that a case should normally be returned for corrective proceedings to the same court which initially tried it, but, for good cause, remand can be to a different court. Occidental Petroleum Corporation v Chandler, 303 F2d 65 (CA10th Cir) (1962), certiorari denied, 372 US 915, 9 L Ed 2d 722, 83 S Ct 718 (1963). We have specifically recognized situations in which reference to a convening authority other than the one who initially acted in the case may be necessitated in the interest of justice. United States v DuBay, 17 USCMA 147, 37 CMR 411; United States v White, 10 USCMA 63, 27 CMR 137. In such cases the new convening authority, not the original, determines whether a rehearing should be ordered. See also United States v Gordon, 1 USCMA 255, 2 CMR 161; United States v Houston, 17 USCMA 280, 38 CMR 78; United States v Koren, 17 USCMA 513, 38 CMR 311. But where our mandate specifically states that the matter be referred 'to the convening authority,' there is no justification for the Judge Advocate General to deviate from the mandate. Cascade Nat. Gas Corp. v El Paso Nat. Gas Co. 386 US 129, 17 L Ed 2d 814, 87 S Ct 932 (1967). As the Supreme Court stated in the cited case at page 136:
. Nó one, except this Court, has authority to alter or modify our mandate. United States v du Pont & Co. 366 US 316, 325, 6 L Ed 2d 318, 324, 81 S Ct 1243.' " lid., at pages 88, 89.]
The Government contends that this Court's mandate in Robbins differs from that of the board of review in this case. In its view, the present mandate invested the Judge Advocate General with discretion to refer the case to a general court-martial authority other than the original convening authority. The Robbins mandate directed that "such proceedings be had in said case as will cause the convening authority to order a rehearing, if such rehearing is practicable." The board of review's original mandate provided only that: "A rehearing is ordered." The concurring opinion in Robbins indicates that a mandate in these general terms may vest discretion in the Judge Advocate General. The board of review did not choose to indicate the intention of its own mandate. Neither need we decide the question. Suffice it to reaffirm the Robbins determination that, absent authorization of the appellate tribunal, a case directed to be reheard should be referred to the original convening authority. We, therefore, answer the first certified question to the extent of holding that under the Uniform Code a case ordered returned to the field for rehearing should ordinarily be referred to the original convening authority.
Mistaken reference of a case to a court-martial authority other than the original convening authority is not a jurisdictional defect in the proceedings. The situation may perhaps be best compared to the constitutional requirement of trial in the district court of the district in which the offense was committed. The accused has the right to trial in a particular court, but he may waive the right. He may waive the right expressly, Hoover v United States, 268 F2d 787 (CA10th Cir) (1959), or he may waive by failing to object to the trial proceedings. United States v Rivera, 388 F2d 545 (CA2d Cir) (1968), certiorari denied, 392 US 937, 20 L Ed 2d 1396, 88 S Ct 2308 (1968). What was said in the separate opinion in United States v Landrum, 18 USCMA 375, 40 CMR 87 (1969), is equally applicable here:
"All that is involved in this case, as in Robbins, is a departure from the terms of our remand. In Robbins, the accused refused to participate in the unauthorized deviation. Here, the accused did not object to action by the new convening authority to whom the Judge Advocate General had referred the case. More importantly, he prevailed upon the new convening authority to modify one of the charges and to agree to approve a sentence no more severe than that suggested by him as appropriate; he also entered a plea of guilty and secured a reduction in the sentence imposed by the court-martial to the limits previously approved by the convening authority. Since the accused has had the benefits of proceedings in which he was a willing, and perhaps even an eager, participant, . . . [there is] no reason to invalidate those proceed ings because they do not confovr-' strictly to our mandate. Certainly, the parties should have sought modification of our mandate, but their failure is not . . . good cause to invalidate proceedings in which both voluntarily and knowingly participated." [Id., at page 376.]
We answer the second certified question in the negative.
The record of trial is returned to the Judge Advocate General of the Army for submission to the Court of Military Review for consideration of the case on the merits.
Judge Darden concurs.
CM 416961.