(Dissenting):
The evidence of record shows that appellant reported to Naval Support Activity, Philadephia, Pennsylvania, on 13 February 1974. Prior to this, appellant had completed boot camp in November of 1973 and had been transferred to the USS DONALD B BEARY (DE 10) via the Transient Personnel Barracks, Norfolk, Virginia. In December 1973, he became an unauthorized absentee from the transient barracks in Norfolk until he was apprehended by civilian police about 21 January 1974. Thereafter, according to a stipulation of record, appellant was confined at the Naval Correctional Center, Philadelphia, Pennsylvania, from 21 January 1974 until 20 February 1974. The Naval Support Activity, Philadelphia, prepared a record of unauthorized absence concerning appellant showing him to be in a status of unauthorized absence from 25 February 1974. This was entered in his service record as a page 6 document, NAVPERS 1070/606, dated 3 May 1974.
On 9 and 14 July and 10 August 1976 the appellant was tried by general court-martial at Naval Support Activity, Philadelphia, charged with unauthorized absence from 25 February 1974 until 12 February 1976.
To prove the Charge and Specification, the Government introduced four principal documents. Prosecution Exhibit 1 shows appellant was transferred to Naval Support Activity, Philadelphia, on 19 February 1974. Prosecution Exhibit 2, a NAVPERS 1070/606, prepared by Naval Support Activity, Philadelphia, shows appellant absented himself from the Naval Support Activity from 25 February 1974 until 12 February 1976. Prosecution Exhibit 3, a Transfer and Receipts Page, reflects appellant reported to the activity on 13 February 1974. Prosecution Exhibit 4, a NAVPERS 1070/606 dated 3 May 1974, shows appellant to be an unauthorized absentee on 25 February 1974.
At his trial, appellant took the position that he was not an unauthorized absentee during the period alleged, but had simply gone home, pursuant to properly issued leave papers, to await an administrative discharge.
Appellant testified that while he was in confinement during the period 21 January 1974 to 20 February 1974 he requested legal counsel. He later met with this counsel who took appellant and several others into a room and advised them that they were going to receive special courts-martial and it would be to their benefit to sign for an administrative discharge. Appellant states he signed up for the undesirable discharge and never saw the counsel again until he was released from confinement. At this time, the same counsel, whose name he does not remember, told him that he would be sent home on leave to await administrative discharge. Thereafter, appellant went to Building 75, Naval Support Activity, Philadelphia, purportedly picked up his leave papers and was told he would be on leave until he “received his discharge or had fur*694ther contact with the Navy.” Unfortunately, appellant subsequently lost these leave papers. He testified, “I didn’t think that I would have to appear in Court. So, I neglected them and they have been lost since then.” Appellant never went to the disbursing office to be paid or to close out his pay record when he went home to await his discharge. Additionally, he left items of personal effects at the activity at the time of his departure. It is also noted that appellant testified repeatedly that he went to Building 75, ship’s company office, to obtain his leave papers. He believed he went to the “second deck.” Later, at an Article 39(a) session, the following colloquy occurred:
MJ: I would like to ask a question that struck me during the testimony of the accused. The accused said that he went to the ship’s company office at Building 75. Wasn’t the ship’s company office in Building 104 at that time?
ACC: Yes, it was, your Honor. I made a mistake.
DC: Excuse me, your Honor, I object to the witness being cross-examined.
MJ: I didn’t ask your client. He came out and answered me, counselor. Obviously, I don’t address the accused. You have been in my court for two years now.
DC: That wasn’t clear at all, your Honor. Apparently, he assumed that you were addressing him.
MJ: I was not addressing your client, counselor. Of course, I will disregard what he said. I have never addressed him before during this colloquy between counsel.
MJ: Morsfield, don’t respond unless you’re actually addressed. Do you understand?
ACC: Yes, sir.
MJ: Mr. Ryan is a very, very fine attorney, as you know. He’s doing an excellent job, an outstanding job in representing you. So, allow him to speak, all right?
ACC: Yes, sir.
After going on the alleged leave, appellant stayed with his parents for a short time, then moved in with his mother-in-law.
Appellant’s defense counsel introduced Defense Exhibits A thru C into evidence; they had been received in the mail by appellant’s father. The documents, dated 26 November 1974, notify the father that his son’s miscellaneous civilian clothing and personal gear would be sold unless he forwarded shipping charges in the amount of $2.35. The last page of the document reflects the signature of appellant’s father disclaiming ownership of the clothing. Appellant testified on cross-examination that this letter to his father gave him the impression that “they” were working on his discharge.
Appellant claims he received no documents from the Navy until approximately December 1975, when he received a letter from the Chief of Naval Personnel notifying him that he was a deserter. [Defense Exhibits D and E]. He asserts that after receiving the letter he was in contact with the Bureau of Naval Personnel and the Reserve Center in Cleveland, Ohio, on several occasions. Appellant offered no evidence as to the names of the persons he talked to in the Bureau or at the reserve center or the substance of the conversations. Appellant also testified that he wrote a letter to the Bureau of Naval Personnel concerning his status. He could not, however, remember to whom he addressed the letter, the date of the letter or exactly what information was contained therein.
At the conclusion of the trial, the military judge instructed the members concerning the elements of the offense. The instructions contained the following guidance:
Now, as long as the accused operated under an honest and reasonable mistake of fact, he is not guilty of being absent without proper authority. Should you find, beyond a reasonable doubt, that at some time later than 25 February 1974, the accused was disabused of such mistaken belief and no longer honestly and reasonably believed himself an authorized absentee, then you may find the accused *695guilty of an unauthorized absence commencing at a time which you have no reasonable doubt that the accused was absence [sic] without proper authority. (R. 95).
The court members, therefore, had the alternative of finding appellant guilty of the entire absence period or for a mere portion of the absence commencing on that which date the members had no doubt appellant was or should have been aware that he was in a state of wrongdoing.
In my opinion, the evidence presented by appellant to rebut the presumption of guilt created by introduction of official documents relating to his absence was patently implausible, unworthy of belief and failed to rebut that presumption.
However, the fact that the court members may have chosen to avoid the honest and reasonable mistake of fact issue does not invalidate the efficacy of their ultimate determination that, whether or not a mistake of fact existed in the first instance, appellant was in a status of unauthorized absence on 25 August 1974 and should have known so.
I failed to comprehend the metaphysical speculations of my learned brothers as to “how may an ‘instantaneous’ offense occur later during the absence than alleged, without substantially changing the offense?”
I believe that the findings of the court are in consonance with the evidence and the instructions of the military judge. Consequently, I would affirm the findings and sentence as approved below.