(concurring in the result) :
In concur in the result.
I would concur outright if it were not for the fact that I believe the record more eloquently supports the findings than does the Court’s opinion and that this makes unnecessary any discussion concerning the standards to be used in determining the state of sleep. The factual structure of the case is such that the court-martial had to find that the accused was either sound asleep or he was awake relieving his irritation. The court-martial rejected the latter version, so we need only concern ourselves with the evidence to support the former.
The record would permit any reasonable person to find that the accused was one of seven men left to man outpost positions, while the balance of the platoon was to go forward on a raid. There were two men assigned to each position and the accused’s tour of duty was from 8:00 p.m. until 12:30 a.m. *76He was required to keep a sound power telephone in his hand or to affix it in such a manner that it would not be more than twelve inches from his ear. The telephone was in working order when he took over his assignment and for an hour thereafter, as he was called by the sergeant several times between 8:00 and 9:00 p.m. It was functioning immediately after the sergeant aroused the accused at 9:30 p.m.; it was in service condition from then until after midnight; and, it was operating when the accused was relieved at 12:30 a.m. by another member of the guard. The sergeant attempted to reach the accused by telephone commencing at 9:00 p.m. and continued his attempts until 9:30 p.m., but he received no answer. He thereupon left his post to determine the reason.
The duties of the accused required him to be alert, maintain a constant lookout for possible enemies, report any unusual incident, and challenge anyone who approached the position. The night was dark, and visibility was restricted; the sergeant covered approximately fifty yards in approaching the post and as he proceeded into the bunker, he created some disturbance. Accused neither challenged nor spoke to the sergeant. The sergeant looked into the bunker, noticed the accused sitting down with his head slumped between his legs, faced at right angles to the enemy avenue of approach, breathing deeply, but otherwise motionless and with the telephone in his hand. His weapon was lying on a ledge to his right. The sergeant entered the bunker close to the accused and watched him for at least a minute. After observing him for that period of time, he was so impressed with the fact that .the accused was asleep that he jabbed'him in the ribs with the butt of his rifle to awaken him. While he did not relieve the accused at that time, because all other members of the platoon were being used, he called him every fifteen minutes to make certain the performance was ij.ot repeated.
Under the issues of this case, it matters not whether the accused was a light or heavy sleeper. Either he was awake and occupied in relieving an irritation of his body or he was sleeping so soundly that possibilities of danger, attention to duty, repeated telephone calls, noises of an approaching person, the immediate presence of an unexpected visitor in close quarters, and a poke in the side with the butt of a rifle were necessary to bring him back from slumberland. Those facts leave no doubt in my mind that the finding is amply supported by the record.