(concurring):
I concur.
I have grave doubts that an issue was reasonably raised in this case as to whether accused failed to return to his unit because he was physically unable to do so, for assuming everything he states to be true, there is really very little to indicate that his illness was one which rendered him unable to travel in accordance with the transportation schedule arranged for him by the military police. However, the doubt must be resolved in favor of the accused, and the issue is one which could easily have been met by the Government.
Among the accompanying papers may be found a certificate executed by Captain De Veau, the captain of military police with whom the accused dealt in Cleveland, Ohio. This certificate contained a number of facts which would have aided the prosecution, but I will mention only one. It is revealed therein that the accused, at the time he turned himself in, claimed he had been ill and had received medical treatment from a Dr. Harris in Cleveland, Ohio. At that time, the story was checked and demonstrated to be false in certain vital particulars. No doubt the check made by Captain De Veau led to the change the accused made in his story when he finally took the stand, but of more significance here is that the Captain’s statement clearly put the Government on notice, some 2-J months prior to trial, that the accused would, in all probability, assert a defense of physical infirmity before the court-martial. Nothing appears to have been done to meet the contention which could have been anticipated, and the prosecution seems to have been content to rely on the morning report. Under these circumstances, I feel this Court should not labor to surmount a major difficulty which could have been obviated at trial and which now bars the path to an affirmance.