(concurring) :
I concur but believe it may be helpful, in order to avoid possible misconception of the law, to append a few additional observations.
As mentioned by the Chief Judge, there is no issue concerning the providence of accused’s plea of guilty to the .offenses growing out of the operation of the automobile. The findings on all other offenses were ignored by the board of review when it assessed an appropriate sentence, and, therefore, we are concerned only with whether the findings of guilt based on pleas of guilty to the offenses alleged under the additional charges — housebreaking violative of Article 130, and the larceny and wrongful appropriations in violation of Article 121 — should be set aside because they were improvidently entered.
The dissenting opinion characterizes the order allegedly given to accused as one “to remove Government owned property from Government buildings and to deliver it to another Government building for the use of the same Government.” I am not willing to accept that as the substance of the instructions given him, for military property is issued to individuals who must account for it and the loss thereof may subject them to personal liability. If that were not so, the unit commander who allegedly suggested “scrounging” would not have been concerned with shortages. But, even assuming the characterization is appropriate, I am nonetheless certain that does not exculpate the accused from his crimes nor render his pleas of guilty improvident. As I understand the dissent, Judge Ferguson does not suggest that the surreptitious removal of Government property from one Government building to another for use of the same Government is no offense, nor that an unlawful taking by a member of one unit or Government department from another agency cannot be theft. In fact, merely to state such a proposition is to recognize its absurdity, and anyone even remotely familiar with property responsibility and accountability at various levels of the chain of supply would reject it out of hand. What my dissenting brother does appear to assert is that a subordinate given such as order may, regardless of his belief in its propriety or its validity to render his actions lawful, comply with impunity. And that argument by necessary inference indicates that trial defense counsel, by concluding otherwise, ignored a proper and obvious defense. Those contentions cannot be accepted.
In the case at bar accused was represented at the trial level not only by appointed military defense counsel who was duly certified, but in addition by two individual civilian defense counsel, both of whom were admitted to practice before the highest court of the State of New Jersey and one of whom was a member of the bar of the United States Supreme Court. The record reflects that accused conferred with his attorneys at great length, explored various aspects of his case with them, and expressed his complete satisfaction with their analysis of the case and their advice. It is in that background that accused voluntarily pleaded guilty and stipulated to facts showing his guilt of the Article 121 and 130 offenses, and it was after findings that the defense adduced the evidence upon which the present appeal is grounded. However, it is standard practice for defense lawyers to present to the court the best possible case for their client, and this case is no exception. Here the pretrial papers disclose the lawyers had knowledge of much more damaging evidence than they produced, and no doubt one very important reason prompting the plea was to keep evidence of wholesale thievery from being introduced. Defense counsel understood the problem and, before eliciting any facts for the court-martial, he stated that the facts were being offered only in extenuation and mitigation to show accused’s motive. And, in the course of his presentation and argument, he expressly pointed out he was not saying that ac*627cused was innocent and he specifically characterized the orders as “unlawful.” Further, defense counsel forthrightly stated the defense would not have admitted guilt but rather would have been obliged “ethically, legally and morally” to enter a plea of not guilty had the facts known to them indicated accused was not criminally responsible.
Manifestly the defense did not contend at trial that the evidence adduced during presentencing proceedings was inconsistent with guilt. And it is perfectly obvious why they did not, for there is a fatal hiatus between the facts presented and a valid defense to the charges. That such orders were given to accused might supply the first portion of a defense of honest mistake, but significantly missing is any claim that accused believed the alleged “scrounging” order to be legal; that he must obey it; that he believed it legitimized the acts he did pursuant to it; or that he did not knowingly go far beyond the limits by breaking and entering Government buildings to steal. Accused did not so contend at trial, nor does he do so here, and, of course, he could not for the record, supported by the honest conviction of three defense lawyers, shows to the contrary. In short, the facts presented in mitigation and extenuation, as a matter of law, failed to raise any defense. Thus it is clear beyond peradventure that defense counsel’s assessment of the case was quite proper and there is no inconsistency between the guilty pleas and the facts presented to the court-martial.