(concurring in the result) :
I concur in the result.
A study of this record convinces me that we need be concerned with considering-only the offense, of misbehavior before the enemy arising out of cowardly conduct which is proscribed by subsection (5) of Article 99, Uniform Code of Military Justice. The specification was intended to charge the accused with having committed that particular form of the offense, as the language of the specification follows' precisely that carried in the form specification for cowardly conduct. The theory of the Government was that the’ accused misbehaved because of fear; the evidence tended to show he was actuated by that mental condition; and the instructions were copied from the “proof” of cowardly conduct found in Paragraph 178 (e) of the Manual for Courts-Martial, United States, 1951, which is concerned with that arm of the crime. Therefore, it is difficult for me to ascertain why any other method of committing the offense should be given any consideration.
Apparently the principal opinion is based on the theory that subsection (1) of the Article' should be considered as a predicate for affirming the conviction. Based on the record and the manner in which we dispose of the case, I believe it is entirely unnecessary to *550consider that question. It matters not which method of committing the greater offense be used as a base, as the instructions are inadequate to support a finding under either mode. In United States v. Sperland, 1 USCMA 661, 5 CMR 89, decided September 3, 1952, we held that an intent to avoid combat is an ingredient of the offense defined under subsection (1). A theory to support a conviction under that subsection was not contemplated by the parties and there is no mention in the instruction of all elements of that particular type of the offense. In United States v. Soukup, 2 USCMA 141, 7 CMR 17, decided January 23, 1953, we held that when the government seeks to sustain a finding under subsection (5), the instructions must include' a requirement that the court-martial find the conduct was motivated by fear. Measured by the rule announced in that case, the instructions are not sufficiently complete to uphold a finding based on that theory.
In view of the fact that the instructions will not support a finding of an offense under either subsection of Article 99, any discussion concerning the gradations of severity of the two crimes, be one greater or lesser than, or equal to the other, is of no materiality. We are merely faced with a situation which makes it impossible to affirm a finding of misbehavior before the enemy under any theory. As held by Judge Brosman, the most that can be affirmed under the instructions given in this case is the lesser included offense of absence without leave. In that connection the law officer instructed as follows:
“1. That, at the time and place alleged, the accused committed that act of cowardice [ran away] alleged; and
“2. That this act occurred while the accused was in the presence of the enemy.
With respect to the legal meaning of the phrases ‘in the presence of the enemy’ and ‘act of cowardice,’ I invite the attention of the court to paragraphs 178a and 178e respectively, Manual for Courts-Martial, a copy of which is before each member of the court.
I further advise the court that the term ‘running away’ does not mean the accused actually ran from the enemy, but that he was in the presence of the enemy and departed from his place of duty without authority or justification.”
When those instructions are interpreted as a whole, I find, the law officer merely instructed that if the court-martial members were to find the accused was in the presence of the enemy and left his place of duty without authority,- they could return a finding of guilty. The members, having considered the elements set out by the law officer, necessarily passed only upon the sufficiency of the evidence to establish, beyond a reasonable doubt, each mentioned element. Accordingly, their finding could sustain an offense no greater than an unauthorized absence. For a more detailed explanation of my views on why we should affirm that included offense, see my dissent in United States v. Gibson, 3 USCMA 512, 13 CMR 68.