(concurring in the result):
Stripped of unessential language, the specification alleges that on January 28, 1968, the accused was granted leave until March 11, 1968, and did not return to military control after the expiration of his leave until March 6, 1969. In my book, those allegations add up to unauthorized absence. United States v Myhre, 9 USCMA 32, 25 CMR 294 (1958). The description of the charge as a violation of Article 133, Uniform Code of Military Justice, 10 USC § 933, does not change its nature as a violation of Article 86, Code, supra, 10 USC § 886. See United States v Johnson, 3 USCMA 174, 178, 11 CMR 174 (1953).
As the principal opinion points out, the case was not tried as an unauthorized absence, instead it was prosecuted on the theory that the accused was authorized to remain at home until he received port call orders, but that when the orders did not arrive there came a time when the accused had a duty, as an officer and a gentleman, to report physically to some military organization. Thus, in his argument to the court members, trial counsel never contended that any part of the accused’s absence was unauthorized; rather he referred to the accused’s failure to seize “the initiative” as demonstrating a degree of “laxity” that seriously “com-promis[ed] his duty as an officer and a gentleman.” Similarly, in instructing the court members as to the elements of the offense, the law officer never mentioned the necessity for a finding that the accused had stayed away from the service without authority. As the case went to the court-martial, therefore, the question was whether, having been ordered to remain at home until he received further orders, the accused had a duty, after some reasonable time had passed without receipt of the stated orders, to report to a military unit.
Although I doubt that the failure of a superior commander to carry out his own orders imposes a duty upon a subordinate to act contrary to the orders given to him in a way that will correct the mistake or omission of his superior, I am willing to assume for the purposes of this case that such a *159duty may arise. However, the specification does not allege that the accused failed to discharge a duty to return to a military unit. There is no averment, for example, that the accused had any such duty. See Manuals for Courts-Martial, United States, 1951, and 1969 (Revised edition), Appendix 6c, Form 30. Nor is there anything in the instruction on the elements of the offense to apprise the court members that they had to find the accused had such a duty by reason of the circumstances mentioned.
On this record, I am satisfied that the conviction cannot stand. If the specification purports to allege an unauthorized absence, which I believe it does, the instruction does not cover the elements of the offense. If the specification was intended to charge the violation of an independent duty on the part of the accused beyond the terms of the orders given him, the allegations are insufficient to allege that offense and the instructions do not adequately cover the elements of that offense. I, therefore, join in setting aside the findings of guilty and the sentence and in dismissal of the charge.