(concurring):
I concur.
Out of this case should come a lesson for trial counsel. The accused went absent without leave on February 5, 1952, while his squad was occupying a position on the outpost line of resistance. His duties included participating in the defense of the position and patrolling the area. His squad was being subjected to intermittent enemy fire. His assigned reason for going absent and staying away for thirteen days was that he wanted to check up on a discrepancy in the number of his rotation points. Except under the most unusual circumstances his story would be inherently improbable and unworthy of belief. However, in spite of that possibility and the fact that this accused took the witness stand and testified, not one question was asked on cross-examination about any of the following subjects: his activities during the period; location of the personnel section; the time necessarily involved in getting to and from that section; traffic and road conditions; availability of trans*595portation between his unit and higher headquarters; whether he was apprehended or voluntarily surrendered; and, many other matters which would have been extremely helpful in bringing his intent into bold relief. Without some information on those matters, it is impossible for us to reject the story as improbable. If a reasonable man would accept it as probable, then an issue on absence without leave was raised and an instruction was required.
Furthermore, it will be noted that the Court’s opinion states accused’s explanation is strongly supported by his service in Korea. That statement is justified by the record in so far as is usable by us for the purpose of testing the probability of the story told. However, after finding and before sentence, an extract copy of accused’s service record was introduced into evidence and this shows that on November 2, 1951, he was convicted of going absent without leave from July 11, 1951, until August 1, 1951, with intent to avoid hazardous duty. In addition to forfeitures, he was sentenced to six months’ confinement which was suspended for twelve months. Within thirty days from the date that sentence was approved, this offense was committed and yet the accused’s story of his service stands unimpeached. I mention these matters because intent is subjective and can only be proven or disproven either by declarations of the accused or by showing acts consistent or inconsistent with his declared mental condition. An announced intent cannot be summarily rejected by a law officer or an appellate court because it does not ring true. However, it can be if, when considered in the light of the attending facts and circumstances, all reasonable men would be required to conclude it was absurd and ridiculous. The intent claimed here approaches the unbelievable but falls short of that principally because the facts and circumstances were underdeveloped.