(concurring in part and dissenting in part):
I agree as to the date of the termination of the Korean hostilities. However, in my opinion, the law officer’s failure to advise this uninformed accused of the statute of limitations at the time of the plea to the specification constituted prejudicial error. *655In three separate instances the Manual for Courts-Martial, United States, 1951, expressly provides that the court “will bring the matter to the attention of the accused and advise him of his right to assert the statute unless it otherwise affirmatively appears that the accused is aware of his rights in the premises.” Paragraph 68c, page 101; paragraph 53h, page 75; paragraph 74h, page 119. I believe the Manual here means what it says and that a valuable right was intended to be bestowed upon an apparently uninformed accused. If this is not so, then I am at a loss as to why the framers of the Manual deemed it necessary to discuss this principle on three separate occasions.
In the instant case the accused pleaded guilty to the lesser included offense of absence without leave in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886, for the period from August 4, 1953, to November 11, 1953. By exceptions and substitutions he was found not guilty of desertion but guilty of unauthorized absence only for the period from August 4, 1953, to January 4, 1956. The charges were not received by the officer exercising summary court-martial jurisdiction until January 11, 1956, a date obviously more than two years after the commission of the offense to which the accused pleaded guilty (Article 43(c), Uniform Code of Military Justice, 10 USC § 843). Manifestly, as the record then stood, the law officer was under an affirmative duty to bring the statute of limitations to the attention of the accused.
By virtue of the statute, the accused had an absolute defense to the unauthorized absence, and I am not prepared to speculate or assume what the accused might have done had he been properly advised. Paragraph 68c, supra, declares that: “The burden is not on the defense to show that neither absence from the territory in which the United States has authority to apprehend him nor other impediment prevents the accused from claiming exemption under Article 43.” The Government, on the other hand, must after the statute of limitations is asserted as a defense show “by a preponderance of evidence that the statute does not apply because of” one of the exceptions enumerated in Article 43 (d) of the Code.
I cannot agree that the situation here is analogous to a motion for a finding of not guilty which is denied, and the accused thereafter elects to present evidence. Prior to trial an accused is always advised by his counsel concerning the consequences of his taking the stand to testify in his own behalf. Furthermore, at the trial itself the accused, before actually taking the stand as a witness in his own behalf, is fully advised by the law officer of his rights— “Unless there is an affirmative showing of record that the accused understands his rights as a witness.” Appendix 8a, page 516 and paragraph 53h, Manual for Courts-Martial, supra. Thereafter, if an accused elects to take the stand, it is as a result of a conscious informed election to do so. Here, although the accused was advised of his rights as a witness, he was not advised- of his right to interpose the statute of limitations. Without this additional advice, it was virtually impossible for him and his counsel to make an enlightened election whether or not to testify.
Ordinarily, a failure to plead the statute of limitations constitutes a waiver; however, the Manual provides that where the record is silent as to any matter which would indicate that an accused “is aware of his right to assert it” — as in the instant case— the doctrine of waiver is wholly inapplicable. Paragraph 68c. To my mind, therefore, the accused’s plea of guilty to the absence was improvidently entered and should not have been permitted to stand. He was convicted of the lesser included offense and consequently I would return the record to The Judge Advocate General of the Army for a rehearing to accord the Government an opportunity to show whether or not the statute may have been tolled for any period of the absence.