(concurring in the result):
I concur in the result reached by Judge Latimer.
II
The Manual for Courts-Martial, United States, 1951, paragraph S3y (1), in discussing the manner in which charges are to be referred for trial, indicates that the order of reference — customarily indorsed on page 3 of the charge sheet — -“may” include a direction that the case be treated as noncapital. Clearly this Manual wording is permissive, not mandatory. Cf. United States v. Merritt, 1 USCMA 56, 1 CMR 56; United States v. Emerson, 1 USCMA 43, 1 CMR 43 (interpreting paragraph 33j(1), supra). In the ease at bar, the convening authority placed this direction on the pretrial report of his staff judge advocate. It is required that this report accompany the charges when referred for trial, and thereafter be attached. to the original record. See Manual, supra, paragraphs 35c, 826(5). In my view this action of the convening authority sufficed to render admissible the several depositions offered against the accused at his trial. See Article 49 (f), Uniform Code of Military Justice, 50 USC § 624.
In cases under the 1949 Manual, boards of review held that, under a variety of circumstances, a direction by the convening authority that charges be treated as noncapital was fully effective, *362although it did not appear in the record of trial proper. United States v. Jones [ACM S-1150], 4 CMR(AF) 345; United States v. Duncan [ACM S-1180], 4CMR(AF) 357. Observing that paragraph 34g of the 1949 Manual contains language similar to that found in the current paragraph 33j(1), I doubt that the provisions of the 1951 Manual were designed to alter this principle. And I find nothing in the Code itself which would eifect such a change.
The decision of the convening authority was conspicuously displayed on the final page of a document required by law to accompany the charges themselves. It is mandatory that this document be made available by trial counsel to defense personnel. Manual for Courts-Martial, United States, 1951, paragraph 44⅞. Accordingly, if defense counsel — two military lawyers and a civilian attorney — performed their duties with even modest competence, they must have known that the case was to be regarded as noncapital. That they did, in fact, possess this knowledge is inferable from the absence of objection to the numerous depositions offered in evidence by the Government.
Conceivably the law officer did not know of the convening authority’s decision — although it is improbable that he would have accepted the depositions in evidence without assurance that the case was not a capital one. The dissenting judge suggests that the law officer’s unawareness of the convening authority’s action is made apparent by his instruction prior to sentence that the accused might lawfully be punished “as the court may direct.” In Articles 78-132, the Uniform Code provides at many points that an accused shall be “punished as a court-martial may direct.” There this phrase is used to signify any punishment exclusive of capital punishment — and when a death sentence is authorized the Code explicitly so provides. The wording of the instruction is so similar to that of the Code as to suggest that — although somewhat ambiguous on its face — the law officer clearly did not mean in it to inform court members that they were permitted to impose a death sentence. Moreover, it is to be noted that the accused had been acquitted of desertion — the only capital offense charged — at the time the instruction was given. Thus, it seems particularly difficult to construe the law officer’s charge in such a manner as to authorize the death penalty. And certainly the premise for the assertion that the law officer was unaware of the convening authority’s direction is wholly destroyed.
In any event, I feel little concern about the law officer’s possible unawareness of the convening authority’s decision, since- — as previously indicated — I am sure that defense counsel did know of that direction. Thus, it became their responsibility to advise him of the convening authority’s order — if they had reason to believe that he was unaware of it, and that it was important for him to possess this information. Actually it is unlikely that they would have seen any point in assuring themselves that the law officer was informed in this regard. In ruling on the admissibility of the depositions, the law officer would in no wise have been moved to act to the accused’s advantage through knowing that the case was noncapital. Quite the contrary. Moreover, in advising the court on sentence, it was quite immaterial whether he know that the convening authority had designated the case as noncapital, for, on the findings of guilty of the lesser offense rendered by the court, the accused could not possibly have been sentenced to death— regardless of any sort of action by the convening authority. In short, I find no basis for saying that it should now be open to the accused to raise at the appellate level a contention that the convening authority used a permissible but imperfect form for directing that the case be treated as noncapital — no question having been raised at the trial.
That which has preceded is certainly not intended to suggest that a convening authority is well advised to make use of a method for designating a case as noncapital other than that provided in paragraph 33? (1) of the Manual. And, of course, had the circumstances raised any doubt that such a direction had been given before trial, I would not falter in holding inadmissible all depositions received against the accused *363without his consent. Actually the risk of prejudice from ignorance on the part of trial personnel that a case has been denominated noncapital is one chiefly borne by the Government. In the presence of such unawareness, the prosecution presumably will not offer depositions against an accused. Too, the law officer would reject any such, if offered —and this despite the absence of objection by the accused. United States v. Young, 2 USCMA 470, 9 CMR 100. On the other hand, the defense’s presentation of evidence would be unimpaired — since its personnel may offer depositions in evidence regardless of whether the case is capital. Uniform Code, Article 49(e). Admittedly an erroneous instruction on the maximum sentence imposable could conceivably prejudice an accused. However, this risk is insufficient to demand a judge-made rule to the effect that, not only must the convening authority have “directed” that the case be treated as non-capital, but also that his direction must be incorporated in the record of trial proper — this in order that the Government may introduce depositions against an accused.
Ill
Extracts from three morning reports of the permanent organization of the accused were offered by the Government to establish the inception of the alleged unauthorized absence. The first of these was dated June 16, 1952, and reported the accused in a status of absence without leave effective June 9, 1952. The remaining two documents covered later periods, but indicated initial dates earlier than June 9. One . salvo fired against these morning reports is that they were inadmissible because prepared by the accused’s unit of assignment rather than his organization of attachment. This blast misses its mark, since Air Force directives require that an airman’s or officer’s status be recorded by both his unit of assignment and attachment. Personnel Accounting Manual, AFM 171-6, as amended, chapter 1, paragraph 8/(1); chapter 4, paragraph 2cZ(1) (a); United States v. King [ACM S-4998], 8 CMR 817.
The accused insists further that the presumption of regularity has been destroyed as to these three papers. The latter two reports — he points out — were shown by the testimony to deal with the identical absence recited in the morning report of June 16. In substance they were corrections; yet they failed to comply with the formal requirements for “correcting entries.” See AFM 171-6, chapter 3, paragraph 30. Moreover, he emphasizes that Major Gillis, a legal officer, played an important role in the preparation of the entries in question. The record of trial shows that Major Gillis was originally consulted — together with the base adjutant — concerning the entry to be made in the morning report of June 16. The reasons for this consultation were not at all sinister. Major Gillis had been largely responsible for obtaining approval for the accused to travel to Japan in search of civilian counsel. Thus, he could be expected to understand better than others the purpose of the orders under which the accused proceeded from Okinawa to Tokyo — the interpretation of which orders would determine the latter’s duty status. Moreover, Major Gillis would have been in a superior position to determine whether the accused might have been delayed legitimately in his ostensible mission. So far as can be detected, Major Gillis was at this stage no more than an impersonal advisor and consultant — with the consequence that the morning report as to which he offered advice was in no way tainted. Cf. United States v. DeAngelis, 3 USCMA 298, 12 CMR 54.
On the other hand, as to subsequent entries, the record suggests that the Major may have proceeded beyond the role of consultant. In fact, the accused’s commander indicated that certain changes were made at the “request” of Major Gillis. That circumstance suggests a deviation from the normal course of personnel accounting —and this deviation in my opinion serves to deprive the latter two morning report extracts of the benefit of any sort of “presumption of regularity.” Moreover, the record of trial indicates *364that the corrections were suggested by Major Gillis — the legal officer — chiefly with an eye to the prospective trial of the accused. Cf. Manual for Courts-Martial, paragraph 144d. In light of their numerous defects, we must accede to the accused’s contention that the latter two morning report extracts were inadmissible.
Since the latter two documents were entitled to no presumption of regularity, they cannot serve to render inadmissible the first morning report extract — that dated June 16, 1952- — whose entry they proposed to alter. So far as admissibility is concerned, their effort to advance the inception date of the accused’s absence was a nullity. However, although they may be deemed in some way to have infected the original morning report so as to render it inadmissible, the accused is aided but slightly thereby. At the trial the parties presented detailed testimony as to the circumstances surrounding the preparation of the various morning reports, and the information on which had been predicated the three entries reciting the accused’s absence. Having before them the very information on which the accused’s commanding officer based the entries, the members of the court would scarcely have -attributed to those entries some mysterious significance apart from the data from which they stemmed. Thus, the erroneous reception of the morning reports cannot have prejudiced the accused — -and the proper inquiry becomes one of sufficiency of the evidence apart from the morning reports.
IV
This inquiry gives me little pause. Certainly I cannot say that the evidence against the accused was insufficient— or less than convincing. I reach this conclusion on the basis of the following considerations: The accused’s age, grade and military experience; his failure to request extension of his orders, or to communicate with his home command on Okinawa; the nature of his activities in Tokyo, as revealed by numerous depositions; the failure of the defense to advance any sort of explanation for his failure to return from Japan on available flights; and the accused’s additional failure to suggest even remotely that he engaged himself in any way in the service of the purpose which took him to Tokyo.
Therefore, I must concur in affirming the decision of the board of review.