(concurring in the result) :
In United States v Kuefler, 14 USCMA 136, 33 CMR 348, I set out at length my views on when, despite absence of a defense request or objection, the law officer is required to instruct the court-martial as to alleged issues of fact. I there noted that findings of fact by the court-martial must be “based upon the probable, not the impossible; upon the reasonable, as it exists in normal, human experience, not upon the unreasonable.” Id., at page 141. See Martin v United States, 284 F2d 217 (CA DC Cir) (1960); United States v Bacldey, 2 USCMA 496, 498, 9 CMR 126. I, therefore, disagree with the implication in the principal opinion that improbable evidence imposes a burden of instruction upon the law officer. However, what appears in this record of trial is merely conflicting evidence as to whether the accused knew of the presence of blasting caps in his locker. The issue was determinable by the court-martial and should, therefore, have been submitted to it by proper instruction. From that standpoint, I join in the disposition reached in the principal opinion.