Opinion of the Court
ROBERT E. Quinn, Chief Judge:The accused was convicted of larceny and five specifications alleging the making of separate false official statements. The findings of guilty were affirmed by a board of review, but a rehearing was ordered on the sentence on the ground that the accused was prejudiced by the admission of certain evidence. The Judge Advocate General of the Army has asked us to review the correctness of the board of review’s action.
In the Fall of 1955, the accused was assigned as officer-in-charge of the post .craft shop, Fort Rucker, Alabama. His duties included the submission of a monthly report showing the overtime hours worked by the enlisted personnel, iwho were paid for the extra service. Starting in October 1955, and in the succeeding months, the accused reported a number of overtime hours for .certain enlisted employees which exceeded that actually worked. In due icourse, these enlisted men received payment on the overstated amounts. The 'overage in payment was turned over to ■the accused. When this situation came to light, the accused readily admitted ithe inflated statements and the receipt ¡from the enlisted personnel of the extra ¡compensation. He maintained, how-lever, that the form of operation had (been suggested and specifically approved by Major Knight, his superior officer, as a proper means of obtaining compensation for the overtime hours he himself worked at the shop; the plan, in fact, had been adopted to avoid the reach of regulations prohibiting compensation to officers for work performed past the normal duty hours.
At the trial, the accused’s admission, in the form of a written statement, was introduced into evidence by the Government. In addition, over defense objection, the prosecution introduced testimony to the effect that in October 1955, the accused requested a civilian contractor who supplied some equipment to the craft shop to bill the Army at the list price and to remit the normal Army discount to him personally. The board of review held that the admission of this evidence was error, but that the error prejudiced the accused only in regard to the sentence. It is this determination which The Judge Advocate General of the Army has asked us to review.
Before we could reach the admissibility question, there was a matter of importance considered by the board of review which required our attention, even though it was not within the issues certified by The Judge Advocate General. We ordered the parties to file supplemental briefs, and we heard arguments on this issue which is:
*449“Whether the accused was entitled to the issuance of a subpoena to have a witness appear in person at the trial.”
Shortly before the trial, defense counsel submitted a written request to the convening authority for the subpoena of a former officer, Kenneth Wohlpart, who had been the accused’s predecessor in charge of the craft shop. The witness resided in New York. It was alleged by the accused the witness would testify tljat while on duty he had engaged in a conversation with the accused and Major Knight in regard to the operation of the shop, and that the Major suggested the accused could receive pay for his extra work by adopting the plan used here. It does not appear whether the convening authority personally acted on the request. It was, however, denied by the Acting Staff Judge Advocate. The accused renewed the request at the trial. It was also denied by the law officer. Thereupon, the defense counsel and the prosecution entered into a stipulation as to the testimony that would have been given by the witness.
In reviewing the case, the board of review held that the “major factual issue” was the accused’s explanation of his actions. Nevertheless, it concluded that the witness’ testimony was immaterial. On that point we reach a different conclusion. Under the evidence, the court-martial could have found that the accused honestly believed he was entitled to be paid for the services he performed in accordance with the adopted plan, or, in the alternative, that he was honestly mistaken about his commanding officer’s authority to authorize the plan for payment of compensation. If the court-martial so found, it would have been duty-bound to acquit the accused of larceny because of the absence of the required criminal intent. As a matter of fact, the intent of the accused was the only crucial issue in the case, since the accused admitted overstating the hours and receiving the compensation paid for the overage. Consequently, if the accused was entitled to the direct testimony of this witness, it was prejudicial error to deny him a subpoena for the witness’ appearance.
An accused cannot be forced to present the testimony of a material witness on his behalf by way 0f stipulation or deposi-
tion. On the contrary, he is entitled to have the witness testify directly from the witness stand in the courtroom. To insure that right, Congress has provided that he “shall have equal opportunity [with the prosecution and court-martial] to obtain witnesses ... in accordance with such regulations as the President may prescribe.” Article 46, Uniform Code of Military Justice, 10 USC § 846.
Pursuant to the Uniform Code the President has directed that trial counsel “will take timely and appropriate action” to subpoena witnesses requested by the defense. Manual for Courts-Martial, United States, 1951, paragraph 115a. No right is given to trial counsel to refuse a request, except in case of disagreement with defense counsel “as to whether the testimony of a witness so requested would be necessary.” In the event of such disagreement, the matter must be “referred for decision to the convening authority or to the court, according to whether the question arises before or after the court convenes.” The record of the proceedings shows that the request was submitted to the convening authority.
The defense request was denied by the Acting Staff Judge Advocate, without any apparent concurrence by the convening authority. If that were the fact, it would clearly be error. However, in this case (Cf. United States v Schuller, 5 USCMA 101, 17 CMR 101), whether or not the decision was made by the convening authority need not detain us. The request was -renewed at the trial and denied by the law officer. The ruling concerns a substantial right of the accused, and it is reviewable by this Court as part of the record to determine whether there was an abuse of discretion. See Meeks v United States, 179 F2d 319 (CA 9th Cir) (1950).
We have already pointed out that the *450testimony sought to be elicited from the witness goes to the core of the accused’s defense. It supports his explanation of his conduct, which constitutes a denial of the specific intent necessary to support a finding of larceny. It was both material and necessary. Cf. United States v DeAngelis, 3 USCMA 298, 12 CMR 54. Accordingly, we conclude that the denial of the accused’s request for a subpoena was prejudicial.
In view of our conclusion as to the accused’s right to the personal testimony of his witness, we need not consider the evidentiary issue raised by the certificate. That question may not arise on a retrial of the case. The decision of the board of review is reversed. The findings of guilty and the sentence are set aside, and the record of trial is returned to The Judge Advocate General of the Army. A rehearing may be ordered.
Judge Ferguson concurs.