(concurring):
I concur.
There is no dispute about the general principle that an honorable discharge is admissible in a trial by court-martial as evidence of accused’s good character. United States v Gagnon, 5 USCMA 619, 18 CMR 243. But that rule does not require us to hold that prior satisfactory military service raises a character issue in all instances. Here the accused received his honorable discharge from the Army on January 29, 1952. Almost five years later he committed at least seven offenses involving the use and possession of marihuana. The question in the case at bar then is simply whether the evidence of his prior service is relevant and of sufficient weight to require the law officer to give a requested instruction on character at the time of the offense.
The character at an earlier time of one on trial for an offense is only relevant to his guilt or innocence if the record does not show it was substantially changed during the intervening period. The theory behind the admissibility of the evidence is that proof of prior good character shows the improbability of the accused committing the particular offense, but the time his character must be determined is when the crime is eom-mitted. Therefore, if the prior good character is nonexistent at that particular time, the testimony has no relevancy and no weight need be accorded it by the court-martial. I suppose that had there been no evidence in the record to the contrary, it might be inferable that accused’s good character in 1952 casts light on his conduct in 1956. However, the accused, by his own evidence, proved that no reasonable person could conclude his character as a man had not changed in the interim and there was not one iota of other evidence which tended to suggest his character was good at the time he became enmeshed with the law. When that condition prevails, an instruction is not required.
So that no one will misunderstand my position — and, I assume, that of the Chief Judge — it is not the offenses charged which destroy the base for the instruction, it is the self-confessed lack of character by the accused, about which there is no factual dispute, which renders his prior good conduct irrelevant and immaterial.