(concurring in the result) :
I concur in the result.
As indicated by the author of the principal opinion, these accused were found guilty of breaching the peace, in violation of Uniform Code of Military Justice, Article 116,10 USC § 916. Following modification of the adjudged forfeitures by the convening authority, other appellate agencies affirmed their sentences, and we granted review on the issue whether the trial counsel erred to their prejudice in seeking to impeach the testimony of accused Davis by showing that he made a prior inconsistent statement without first establishing that it was obtained in compliance with Code, supra, Article 31, 10 USC § 831.
From the evidence, it appears that Davis, Watson, Airman Moore, and other military personnel were drinking in a cafe in Furstenfeldbruck, Germany. The appearance of a colored airman, Jones, led to a racial altercation. Jones was viciously assaulted and dragged from the establishment. Accused Davis testified that he was standing at the bar and heard a commotion behind him. Turning, he saw Moore bent backward over a table with Jones facing him. He restrained Watson from interfering in the matter and denied personally taking part in the assault. On cross-examination, the trial counsel asked Davis if he had made a pretrial statement to an Airman Bullock. The defense counsel objected on the basis that there had been no showing the statement had been taken in compliance with Code, supra, Article 31. After the objection was overruled, the accused admitted that he had made such a statement and he had declared therein that he did not know the whereabouts of Watson and Moore during the incident. Following that testimony, the defense counsel demanded the production of the statement. The record reflects that the trial counsel handed it to him. Immediately thereafter, the defense counsel had “a document” marked as “Defense Exhibit A.” On redirect examination, he tendered it to Davis; elicited the information that it was his written pretrial statement; and that Davis considered it to be consistent with his testimony, as his in-court relation of Moore’s whereabouts concerned a different part of the incident from that with which he initially described in the statement to Bullock. When asked whether he desired to offer the statement in evidence, defense counsel remarked pertinently:
“It doesn’t have to be admitted. You have to have usually something on it so the record knows what it is you are talking about.”
No defense exhibit is attached to the record of trial. However, the .allied *630papers contain a handwritten statement made by the accused Davis which is marked “Def Ex A.” This document bears the same date as the statement to which all parties referred during Davis’ testimony; was made to an Airman Bullock; and contains the alleged inconsistency upon which this appeal is based. It also indicates that Davis was properly advised of his rights under Code, supra, Article 31, and that the statement was obtained from him without coercion or unlawful influence.
In my opinion, the foregoing matters irresistibly dictate the conclusion that the statement contained in the allied papers is the declaration to which both parties made reference during the trial. Moreover, defense counsel’s use of the statement indicates his intent to have it incorporated in the record. While it properly should have been attached to the transcript as a defense exhibit, we are not required to close our eyes to reality and, because of the carelessness of those charged with the physical assembly of a record of trial, pretend ignorance of the contents of a document so plainly before us.
As I believe the statement is thus properly before us, I find there is evidence in the record, sufficient to establish for appellate purposes, that the accused Davis was properly advised before he made the declaration used to impeach him, if, indeed, it had that effect. Accordingly, I concur in the result reached by Judge Latimer and I need not express my views with respect to the other propositions which he advances.