(concurring in the result):
While a military accused has both a statutory1 and a constitutional2 right to be present during the conduct of his trial, he may waive this right through the unauthorized and voluntary absence from the proceedings after he has been arraigned. United States v. Cook, 20 U.S.C.M.A. 504, 43 C.M.R. 344 (1971). Paragraph lie of the Manual for Courts-Martial, United States, 1969 (Rev.), provides:
The accused’s voluntary and unauthorized absence after trial has commenced in his presence and he has been arraigned does not terminate the jurisdiction of the court, which may proceed with the trial to findings and sentence notwithstanding his absence. In such a case the accused, by his wrongful act, forfeits his right of confrontation.
This military practice is consistent with that prevailing in civilian federal courts. Fed.R.Crim.P. 43 after recognizing in sub*181section (a) the defendant’s right to be present at all critical stages of proceedings against him, expressly notes a caveat to this principle in subsection (b):
. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived his right to be present whenever a defendant, initially present,
(1) voluntarily absents himself after the trial has commenced (whether or not he ha[d] been informed by the court of his obligation to remain during the trial).
Thus, while in military courts there is the added requirement that the absence of the accused be unauthorized if trial is to proceed in absentia, both military and civilian federal court practice require the absence to have been a voluntary one on the part of the accused if trial is to proceed without him. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); United States v. Cook, supra.
While a court may not presume an accused’s waiver of a constitutional right, see United States v. Partlow, 428 F.2d 814 (2nd Cir. 1970), it may draw an inference that his absence was voluntary — and, hence, his right to be present waived — by the facts of a given case, including the conduct of the accused. See United States v. Tortora, 464 F.2d 1202 (2nd Cir. 1972); Phillips v. United States, 334 F.2d 589 (9th Cir. 1964), cert. denied, 379 U.S. 1002, 85 S.Ct. 723, 13 L.Ed.2d 703 (1965). For instance, it may be inferred, sans evidence to the contrary,3 that an accused who was present in court when the trial was recessed and who knew precisely when the proceedings were scheduled to resume, but who nonetheless is not present when court reconvenes at the designated time, is absent voluntarily. See Taylor v. United States, 414 U.S. 17, 94 S.Ct. 249, 38 L.Ed.2d 150 (1973); United States v. Marotta, 518 F.2d 681 (9th Cir. 1975).
I agree with Judge Cook that any inference that the appellant was voluntarily absent from the courtroom when the proceedings against him in the instant case resumed nearly 8 months after they had been continued for an unspecified period of time, is rebutted adequately by the facts and circumstances of record. See Cureton v. United States, 130 U.S.App.D.C. 22, 396 F.2d 671, 676 (1968), quoted with approval by the Supreme Court in Taylor v. United States, supra, 414 U.S. at 19 n. 3, 94 S.Ct. 249. As I am not convinced that this denial of the appellant’s constitutional right to confrontation was harmless, see United States v. Ward, 23 U.S.C.M.A. 572, 50 C.M.R. 837, 1 M.J. 176 (1975); see also Wade v. United States, 142 U.S.App.D.C. 356, 441 F.2d 1046 (1971), I am constrained to agree that reversal is required. Moreover, for the reasons stated by Judge Cook, I agree that dismissal of the charges is appropriate.4
. Article 39(b), Uniform Code of Military Justice, 10 U.S.C. § 839(b).
. U.S.Const. amend. V-VI.
. See United States v. Cook, 20 U.S.C.M.A. 504, 43 C.M.R. 344 (1971).
. In light of our disposition, I reach neither the question whether the appellant’s absence was “unauthorized” within the meaning of paragraph 11c, Manual for Courts-Martial, United States, 1969 (Rev.), nor the question whether the court which tried the appellant in absentia must have been the same court which arraigned him.