(concurring in part and dissenting in part) :
In my opinion, the Korean conflict did not produce a “time of war” in the United States. See my dis- senting opinion in United States v Ayers, 4 USCMA 220, 228, 15 CMR, 220. Accordingly, I agree only with the conclusion that the accused was entitled to the benefit of the Statute of Limitations.
According to the accused’s testimony, during his unauthorized absence he was convicted by a civilian court for a civilian offense on November 11, 1953. At that time he was purportedly visited in the local jail by two agents of the Criminal Investigations Division and advised by them that he would be discharged from the Army because of his conviction. AR 635-206. The discharge papers were to be sent to him at the civilian jail. When he was released on July 7, 1954, he asked the warden if he had received the discharge. He was advised that it had not come to the prison, but that he should not “worry” because there was “no pickup” on him. As a result, he believed that he had “no duty ... to return to the Army,” and he went home. Late in 1955 he applied for admission to the Veterans’ Hospital for medical care. On learning that he needed his discharge certificate, he “hitchhiked” to Fort McClellan, Alabama to “See about getting a discharge.” On his arrival he was confined in the post stockade. Later he was charged with desertion for the period from August 4, 1953, to January 4, 1956.
In United States v Holder, 7 USCMA 213, 22 CMR 3, we held that an honest and reasonable belief by an accused that he has been discharged from the service constitutes a defense to a charge of unauthorized absence. Assuming that the accused’s testimony here is sufficient to raise the issue, at best it applies only to the period after July 7, 1954. In regard to the period from August 4, 1953, to July 7, 1954, the accused’s testimony constitutes a judicial admission of both the unauthorized nature of his absence and of facts which tolled the running of the Statute of Limitations, Article 43(d), Uniform Code of Military Justice, 10 USC § 843; United States v Trojanowski, 5 USCMA 305, 17 CMR 305. The record of trial, therefore, supports a finding of guilty of an unauthorized absence from August 4, 1953, to July 7, 1954.
I would return the record of trial to The Judge Advocate General of the Army for submission to a board of review. In its discretion the board of review can order a rehearing or it can affirm only so much of the findings as includes an absence from August 4, 1953, to July 7, 1954, and reassess the sentence in the light of its action.