(concurring in part and dissenting in part):
I disagree with the majority’s conclusion that the convening authority abused his discretion in denying the defense request for certain witnesses. The convening authority specifically observed the request did not indicate that any of the desired testimony was “relevant regarding the innocence or guilt of the accused.” As to the value of the testimony for the purpose of sentence, the letter-ruling referred to several factors which the convening authority apparently considered sufficient to justify denial of the defense request.
First, the convening authority pointed out that the three military witnesses were aboard a vessel “on operational commitments.” The manifest need to retain them on the ship contrasts sharply with the undefined and uncertain value of their testimony to the accused at trial. The accused merely described these persons as “character” witnesses; he gave no hint of the nature and length of his association with them, or what favorable traits of his character they were expected to testify to. The fourth witness was a civilian. He was located a great distance from the place of trial; and the nature and extent of his association with the accused were also not disclosed. Secondly, the convening authority noted that defense counsel had “already requested a number of letters” from various persons “regarding character evidence.” There was no indication that the requested witnesses would give different or more relevant “character” testimony than was already available to the defense. It is certainly inferable from the convening authority’s remarks, which include a reference to the general relaxation of the rules of evidence during the sentence procedure, that he believed the prospective testimony might be merely cumulative. Thirdly, the convening authority remarked that defense counsel had been in the case for almost four weeks; he considered this time “sufficient” for the purpose of assembling character evidence for mitigation purposes. For that reason, he concluded “[fjurther *17delay” for procuring “formal depositions” was not justified. In my opinion, these circumstances fully support his denial of the defense request.
I also disagree with the majority as to the effect of the accused’s failure to renew the motion at trial. Developments in the defense case between the time of the convening authority’s ruling and the trial may materially have changed the necessity for the witnesses’ testimony. See United States v Mitchell, 15 USCMA 516, 520, 36 CMR 14; United States v Oliver, 14 USCMA 192, 33 CMR 404, footnote 1. The failure to renew the motion at trial reasonably implies that the accused and his lawyer concluded the prospective testimony was, in fact, unimportant to the accused’s case.
In other respects, I agree with the principal opinion, and join in the affirmance of the decision of the board of review.