(concurring in the result) :
I concur in the result.
I am unable to agree with the Chief Judge that the proof in this case does not raise an issue concerning the accused’s knowledge that he had written the checks involved in seven of the specifications charging dishonorable failure to maintain funds on deposit to pay them upon presentment, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934. It seems to me that evidence that an accused is intoxicated and, as a consequence of that state, was unable to recall the writing or uttering of any of the checks he allegedly prepared, necessarily implies that he did not thereafter become aware of the need for depositing funds to cover these instruments. It is true that the checks and their stubs were serially numbered and easily available for his inspection during a period of sobriety, but it would also seem that these are matters which go to the credibility of his claim rather than to whether it presents a question for the resolution of the fact finders.
Nevertheless, the accused, because of his trial tactics, cannot now complain of the lack of instructional guidance on the issue. As the Chief Judge points out, the precise question was discussed by the prosecution, the law officer, and the defense counsel. The latter affirmatively indicated that he did not desire an instruction on the issue. Under the circumstances, he may not now complain that it was not given. United States v Bowers, 3 USCMA 615, 14 CMR 33; United States v Mundy, 2 USCMA 500, 9 CMR 130. Accordingly, I concur in the affirmance of the decision of the board of review.