*54Opinion of the Court
HOMER FERGUSON, Judge:Accused was originally tried by general court-martial at Fort Ord, California, on May 13, 1958, upon two specifications of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, alleging, respectively, the theft of the sums of $65.00 and $5.00. Consonant with his plea, accused was found guilty of both specifications and sentenced to bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. The sentence was approved by the convening authority. An Army board of review ordered a rehearing on the basis that command influence had been exercised in the proceedings. The rehearing was initially limited to sentence, but upon a motion for reconsideration in which the Government conceded the plea itself had been unlawfully obtained, the board also set aside the findings.
The general court-martial which reheard accused’s case was convened by the Commanding General, Sixth United States Army, San Francisco, California, on December 5, 1958. At the outset of the proceedings, the defense counsel moved for a continuance until on or after December 9, 1958, in order that a witness, whose deposition was to be offered in evidence by the prosecution, might be afforded the opportunity personally to appear before the court-martial. In support of his motion, counsel established that the witness in question, Private Burkett, who was the victim of larceny charged in specification 1 of the Charge, had indicated in his deposition that he planned to be in Oakland, California, for approximately two weeks, commencing on December 9. Oakland, California, is within ten miles of the place of trial. Defense counsel had previously demanded the personal appearance of Burkett at the trial when it was originally proposed in November 1958 to take his deposition. At that time, Private Burkett resided in Tacoma, Washington, a place in excess of one hundred miles distant from San Francisco. On December 4, 1958, prior to the convening of the court-martial, defense counsel brought to the attention of the convening authority in writing the fact of Burkett’s intended visit to Oakland and moved for a continuance of the case. This motion was denied in an indorsement signed by the trial counsel which noted, “Trial of this case remains set for 5 Dec 1958, at 0900 hrs, as per verbal instructions from SJA, 6th US Army.”
The trial counsel argued that the motion should be denied, as a Government witness had been brought to the trial from Fort Dix, New Jersey, on temporary duty, and should not be required to be put to the trouble of further delay. He also argued that, as the witness’ deposition was now available, the accused would be denied no substantial right by rejection of his request for a continuance.
The law officer denied the defense motion. Subsequently, the accused pleaded not guilty to the specification involving Burkett as a victim and guilty to the Charge and the other specification. He was found guilty of both specifications and sentenced to a bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. Intermediate appellate authorities affirmed, and we granted review on the issues whether the law officer erred in denying the accused’s request for a continuance and whether it was prejudicial to permit accused’s trial testimony to be impeached by utilization of a stipulation of fact into which he had entered at his former trial.
The granting or denial of a motion made at the trial for a continuance of court-martial proceedings lies within the sound discretion of the law officer. United States v Plummer, 1 USCMA 373, 3 CMR 107. Only when he abuses that discretion will we reverse for refusal of a reasonable delay. United States v Vanderpool, 4 USCMA 561, 16 CMR 135. And the erroneous denial of accused’s motion must, of course, prejudice his substantial rights. United *55States v Nichols, 2 USCMA 27, 6 CMR 27. It is difficult to lay down any principle whereby the question of abuse of discretion may be precisely determined, for, as the very phrase imports, the exercise of judicial discretion depends upon the circumstances with which the law officer was faced at the particular trial. It may well appear that the defense counsel seeks only to vex the Government with needless delay in order to avoid the certain consequences of his client’s misconduct. On the other hand, he may need further time to secure the attendance of material witnesses or to prepare his defense. In either instance, it is obvious that the military trial judge should liberally grant motions for delay bottomed upon a proper showing. At the same time, he should not hesitate to insist upon proceeding if it is clear that there is little merit to be obtained from a postponement. As we pointed out in United States v Nichols, supra:
“ . . . We believe that law officers should weigh carefully the merits of a motion to continue and if it appears reasonable that it is not made on frivolous grounds or solely for delay, the request should ordinarily be granted. However, the burden still remains on the moving party to justify the motion. Counsel for accused has the responsibility to make a full and fair disclosure of the necessity for, and the nature, extent and availability of, the desired evidence. If he fails to do so, the law officer cannot be condemned.”
We are certain from our review of the facts disclosed in this record that the defense counsel demonstrated a sufficient basis for his motion. As was pointed out in United States v Valli, 7 USCMA 60, 21 CMR 186, depositions are tools for the prosecution which cut deeply into the privileges of an accused. We there indicated that they should be used only “when the Government cannot reasonably have the witnesses present at the time of trial.” Here, it is obvious that it would have been entirely reasonable to have the witness, yet a member of the military service, present at the hearing. The delay requested was relatively brief. The witness would have been in a nearby city, and there can be no doubt that his presence before the court-martial would have afforded an infinitely fairer opportunity for the testing of his statements.
The Government urges, however, that no prejudice to the accused resulted from the denial of the continuance, for Burkett could testify only concerning the taking of his money. This begs the question, for had the witness been present, an issue may well have been raised concerning the taking and the amount involved, the latter an important circumstance in measuring punishment. In any event, we can only speculate concerning what might have happened had the witness been present and counsel not forced to rely upon the arid recitals of his deposition. We are not inclined to deny substantial relief to an accused on that basis.
We hold the defense request reasonable and its denial by the law officer constituted an abuse of his discretion. As the accused was thereby denied the advantages inherent in the personal testimony of a prosecution witness, the error prejudiced his substantial rights. Reversal of the findings of guilty must follow on specification 1 of the Charge.
Our action on the foregoing question would normally eliminate any necessity for consideration of the issue relating to the use'of a stipulation made in connection with a guilty plea to impeach an accused who, at a rehearing, pleads not guilty. However, Judge Lat-imer has chosen in his separate opinion to set forth his views with relation to this subject. In order that the law may be settled and the matter put to rest, I concur unreservedly in his conclusion that stipulations so made may not be' used subsequently to destroy an accused’s credibility. The fair probability that consideration of the stipulation influenced the court-martial in reaching its verdict concerning specification 1 of the Charge also requires reversal of the findings of guilty with respect thereto.
The decision of the board of review is reversed and the record of trial is *56returned for reassessment of the sentence on the basis of the remaining findings of guilty or direction of a rehearing on specification 1 and the sentence.
Chief Judge Quinn concurs in the result.