(dissenting):
I dissent.
I disagree with my brothers’ failure to find that the military judge erred in his inquiry regarding the accused’s request for trial by military judge alone, for the reasons set forth in my separate opinion in United States v Jenkins, 20 USCMA 112, 42 CMR 304 (1970). Paragraph 53d (2) (6), Manual for Courts-Martial, United States 1969 (Revised edition), requires that the military judge “assure himself at the trial, before announcing that the court has assembled, that the request was understandingly made by the accused.” His failure to do so, in my opinion, was prejudicially erroneous.
I also disagree with their holding with regard to the accused’s conviction of Charge I. The specification of Charge I alleges that the accused failed “to go at the time prescribed to his appointed place of duty, to wit: physical training formation.” His testimony, under oath, on this issue is set forth in full in the majority’s opinion. Stripped to its essentials, the accused contended that he arrived late at the formation because his watch had stopped. The Court of Military Review, while conceding that a mistake of fact is a defense to this charge (United States v Holder, 7 USCMA 213, 22 CMR 3 (1956)), if the mistake is honest and reasonable, did not believe, “accepting appellant’s testimony, that his mistake was reasonable under the circumstances.”
The circumstances, as reflected by the accused’s unrebutted testimony under oath are: that he went to the Post Exchange (PX) at three-thirty; he intended to be present at the formation; while at the PX he looked at his watch and the time reflected was fifteen minutes till four; since the PX is about a six to seven minute walk from the place of the formation, he believed he had sufficient time to get there; when he arrived at the formation area he again looked at his watch and it still reflected fifteen minutes till four; he became aware then, for the first time, that his watch had stopped.
For some inexplicable reason, my brothers take the position that inasmuch as “it could fairly be inferred that he remained at the PX,” after noting the time as 3:45 p.m., “the fact that he did not know his watch had stopped at 3:45 p.m., is wholly immaterial to the reasonableness of his conduct in remaining at the PX.” For this reason, they hold that “the Court of Military Review could fairly determine that the accused’s failure to make the formation did not result from a reasonable belief that he had ‘plenty of time’ to make it.”
The accused did not describe his activities after he noted, while at the PX, that Ms watch indicated the time as fifteen minutes till four o’clock. He was not asked any questions about this phase of his testimony on cross-examination. Since there was testimony in the record that the accused had attended other formations in the same week, I do not perceive how “it could fairly be inferred that he remained at the PX,” after noting the time as fifteen minutes till four. More likely, in my opinion, the watch had already been stopped for some time and the ac*412cused’s efforts to attend the formation were thwarted by the faulty mechanism of a mechanical device. As defense counsel argued at trial:
“In regards to Specification 1, or the Specification under Charge I, failure to go to an appointed place of duty, the only defense is an honest one and reasonable. The testimony of Lance Corporal McCOWN, is such, that he was in walking distance to make it to the formation with plenty of time to spare. As testified earlier, he had been at . . . by the squad leader who conducted the run, he had been there at other formations in the same week. Men depend alot [sic] upon mechanical devices for support. Most notably, a wristwatch. Testimony is that in this particular instance, the watch had stopped. We put faith and trust in mechanical devices so that we can achieve our aims. Sometimes they fail with unfortunate consequences, and I submit that that is the result in the import of the defense [offense?] committed by Lance Corporal McCOWN.”
In my opinion, the reasonableness of the accused’s mistake is plainly evident. It is the rare person, indeed, who has not been late for an appointment or meeting of some sort, because of reliance on a timepiece which has failed to function properly. Since the Court of Military Review accepted the accused’s testimony as honest, I believe that it erred in finding it not reasonable.
I would reverse the accused’s conviction for failure to go to his appointed place of duty and dismiss Charge I and its specification. Since I believe that the military judge erred to the prejudice of the accused in his inquiry regarding the accused’s request for trial by military judge alone (see my dissent in United States v Jenkins, supra), I would further reverse the decision of the Court of Military Review, affirming his conviction of the other offenses, and direct that a rehearing may be ordered.