(dissenting):
Two reasons impel me to dissent. First, the accused introduced the evidence in his own sworn testimony to explain his absence. He wanted the court members to consider the matter, and the president certainly could not exclude it from evidence. Once in evidence, I just don’t see how the court members could possibly consider it for the purpose of explaining the offense, without also considering it as evidence bearing on the accused’s character. An instruction requiring such compartmentalization of application would have been completely futile. It is a “hollow gesture” indeed to reverse a case for failure to perform a futile act. See United States v Hinton, 8 USCMA 39, 42, 23 CMR 263. Secondly, since the testimony was properly admitted and was relevant to the question of punishment, it could, in my opinion, be considered by the court members. I pointed out in an earlier case that there is a material difference between evidence properly admitted and evidence improperly before the court-martial; and there is a material difference between evidence of other offenses admitted before findings and such evidence admitted in connection with the sentence. In the latter instance, “the court members are entitled to relevant evidence to indicate the kind of person the accused is.” United States v Kirby, 16 USCMA 517, 37 CMR 137.
I would affirm the decision of the board of review.