(dissenting) :
The law officer in this case decided to resume trial of the appellant in ab-sentia with knowledge that the latter had undertaken an unauthorized absence that began April 7, 1969, and that his whereabouts remained unreported on the date the trial resumed. This is the content of a morning report extract introduced in evidence as Prosecution Exhibit 1. That is not all. At the same time defense counsel advised the law officer that he had personally been unsuccessful in every attempt to contact Cook but had managed to find Cook’s cousin, an attorney, who promised to have Cook returned by April 4, 1969. On April 21, 1969, the date this trial resumed, this promise was still unfulfilled.
*509Important, too, are the expressions of this appellant who, before the recess, admitted to the law officer that he had failed to report to his unit as required because, in addition to being scared, he had family problems. In fact, Cook did not feel he was “unable to report.” Equally significant is that, following a recess, defense counsel specifically advised the law officer that he did not intend to raise an issue, during this trial, of the appellant’s capacity to stand trial or cooperate in his own defense.
Considering all this, what more could the law officer have done to conduct “a proper exploration of the issue of the voluntariness of the accused’s absence from his trial” ? Where would he have obtained his information? An unauthorized absence that began after the trial started must be presumed voluntary. If the defendant has evidence that counters this presumption, he has the responsibility of coming forward with it. United States v Parker, 91 F Supp 996 (MD NC) (1950), affirmed, 184 F2d 488 (CA 4th Cir) (1950). Should he do so, appellate authorities have the power to take corrective action. The majority opinion gives the law officer a responsibility that I think attaches to the appellant. I am satisfied that the law officer adequately inquired into the voluntariness of the absence.
The remaining issues in this case are whether the Court of Military Review erred in finding the appellant mentally responsible at the time of the offense and whether that court applied an incorrect test of mental responsibility by requiring a showing of total impairment of ability to adhere to the rght.
Two medical experts testified during the course of this court-martial. Dr. Reilly related in behalf of the defense that he believed appellant had an impaired ability to adhere to the right at the time the offense occurred. This condition, he said, was brought about by a “psychotic illness.” Major Crews, testifying for the prosecution in rebuttal, was of the opinion that at the time in question appellant’s ability to adhere to the right was unimpaired.
The Court of Military Review considered post-trial affidavits by psychiatrists who also varied in their conclusions. One affiant believed that during his absence Cook suffered a total inability to adhere to the right. Two others joined in concluding that Cook had only suffered partial impairment. Having considered all of the evidence at hand, the Court of Military Review denied the appellant’s motion to rescind its affirmance of his conviction in these words:
“All psychiatrists who examined appellant were of the opinion that he knew right from wrong at the time of the offense, and those expressing an opinion thereon were of the opinion that he was able to understand the nature of the procedings against him and intelligently to cooperate in his defense. Only one believed that he was unable to adhere to the right at the time of the offense (civilian psychiatrist post-trial), while the remainder were of the opinion that his ability in this regard was ‘impaired’ (civilian psychiatrist, defense witness at trial), or ‘substantially impaired’ (board of medical officers convened post-trial pursuant to our order), but not total. His condition was variously diagnosed as ‘paranoid schizophrenic syndrome’ (civilian psychiatrist post-trial), ‘phobic neurosis’ possibly approaching the early stages of schizophrenia (civilian psychiatrist, defense witness at trial), or ‘Paranoid State’ but not ‘paranoid schizophrenic reaction’ (board of medical officers convened post-trial pursuant to our order).
“We have reviewed the record of trial and considered all the post-trial matters related herein and are not disposed to disturb the decision of the Board of Review (see United States v Chappell, 19 USCMA 236, 41 CMR 236 (1970); United States v Fleming, 7 USCMA 543, 23 CMR 7 (1957)). Appellant’s motions, accordingly, are denied.”
The standard in mental responsibility is well settled in military law. An appellant is legally responsible for his acts if at the time of the offense he is so far free from mental defect, disease, or derangement as to be able, concerning *510the acts charged, both to distinguish right from wrong and to adhere to the right. Only a total inability to adhere to the right will exculpate. United States v Storey, 9 USCMA 162, 25 CMR 424 (1958); United States v Chappell, 19 USCMA 236, 41 CMR 236 (1970). Despite a minor modification of paragraph 1206, Manual for Courts-Martial, United States, 1969 (see also Manual for Courts-Martial United States, 1969 (Revised edition)), promulgated no significant change in this rule. See Analysis of Contents, Manual for Courts-Martial, United States, 1969, paragraph 1206.
The Court of Military Review therefore applied the proper standard in resolving the mental issue against this appellant. The evidence amply supports that action. United States v Wimberley, 16 USCMA 3, 36 CMR 159 (1966). In my opinion, neither of these remaining issues entitles the appellant to relief.
I would affirm the decision of the Court of Military Review.