(concurring in the result):
I am not as certain as my brothers that Captain Harrigan’s testimony demonstrates only that the accused was ordered into arrest to assure his presence for duty. As the Court is obliged to accord the Government the benefit of every inference from the evidence favorable to the verdict, I am willing to assume that the captain’s testimony justifies the conclusion that the accused was validly arrested.
Under paragraph 20a of the Manual for Courts-Martial, United States, 1969 (Rev), the status of arrest is automatically terminated when the person in arrest is required to perform duties “inconsistent” with the status of his arrest. The accused here was ordered to perform, daily, his “normal work duties”; but he was prohibited from bearing arms, exercising command, or participating in the field exercises. There is no indication in the record that the accused’s normal duties included any of the prohibited activities. As far as the record goes, therefore, the accused performed all the duties incident to his usual daily work schedule. Consequently, if the accused was in an arrest status, the duties he actually performed were inconsistent with that status, and the status was, by mandate of the Manual, “thereby terminated.” Id. It follows, therefore, that whether the accused was properly arrested, as the Government contends, or whether he was never legally arrested, as the principal opinion holds, his conviction for breach of arrest cannot properly be sustained. I, therefore, join in the disposition directed in the principal opinion.