concurring in part and dissenting in part:
Specialist Five Kenneth D. Michaels, the appellant, was a club warehouse supervisor in the western corridor of the 2d Infantry Division in Korea. It was his responsibility to travel in trucks from Camp Howze to the commissary warehouse in Yongson to obtain food supplies for the clubs in the 2d Infantry Division. On those occasions relevant here, he was met at the commissary warehouse by Korean employees from Camp Casey, who also traveled by trucks to obtain supplies. The documents needed to receive the supplies were prepared at Camp Casey and carried to Yongson by the Korean employees for delivery to Specialist Michaels. It was his responsibility to sign the documents, which he never read, and to give copies of them to various commissary officials.
In at least four instances, the Koreans inserted bogus requests for supplies among the authentic documents. On two of those occasions, Specialist Michaels became aware at the commissary pick-up point that he had signed the bogus requests and that the trucks driven by the Koreans were loaded with excess supplies. Nevertheless, he permitted the trucks to depart the area and, as a result thereof, the excess supplies were diverted from Government use by the Koreans. Twice Specialist Michaels received about $150.00 remuneration for his role in the fraudulent scheme. Thus, he was convicted of two counts of larceny pursuant to his pleas of guilty.
With respect to the other two incidents, excess supplies were stolen in the same manner. However, Specialist Michaels was not aware that he had signed the fraudulent requests and that supplies had been stolen. He learned that the thefts were committed a day or so afterwards, when the Koreans paid him not to report the incidents to military authorities. Believing that his facilitating the thefts by negligently signing the requests for excess supplies and his failure to report the larcenies constituted a crime, Specialist Michaels pleaded *850guilty to two larceny charges. The trial judge rejected the pleas as improvident because he was not satisfied that Specialist Michaels possessed the requisite criminal intent to support the larceny offenses.
He then pleaded guilty by exceptions and substitutions to two counts of accessory after the fact. The plea was accepted because Specialist Michaels admitted that after he learned that Government property was stolen by the Koreans, he accepted money as compensation for not reporting it.
I agree with the decision of the majority that Specialist Michaels’ plea of guilty to larceny is provident. However, in my opinion, the same is not true with regard to accessory after the fact. I assume for the limited purposes of this appeal, it is permissible for Specialist Michaels to plead guilty to accessory after the fact as a substitute for the larceny charges.1 Until recently it was fundamental in the law that absent a miscarriage of justice, a litigant who incites and leads a trial court into error will not be heard to either complain of that action or take advantage of it on appeal.2
An accessory after the fact is one who, knowing that an offense punishable under the Uniform Code of Military Justice (UCMJ) has been committed, thereafter receives, comforts or assists the offender by obstructing justice. United States v. Marsh, 13 U.S.C.M.A. 252, 32 C.M.R. 252 (1962); United States v. Tamas, 6 U.S.C.M.A. 502, 20 C.M.R. 218 (1955); Article 78, Uniform Code of Military Justice, 10 U.S.C. § 878. The assistance given the offender is not limited to helping him escape or concealing him, but includes those acts which are performed to conceal the commission of the offense. However, the mere failure to report a known offense will not constitute one as accessory after the fact. Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 157. See Boyett v. United States, 48 F.2d 482 (5th Cir. 1931); Lowe v. People, 135 Colo. 209, 309 P.2d 601 (1957) (en banc).
The statutory definition itself implies that in order to be convicted as an accessory after the commission of the offenses, Specialist Michaels must have done an affirmative act to conceal the larcenies or otherwise aid the Koreans in avoiding the legal consequences of their criminal endeavor. Gordon v. State, 533 P.2d 25 (Alaska 1975); State v. Clifford, 8 Or.App. 494, 491 P.2d 1195 (1971). He has the right under Article 78, UCMJ, to remain silent; the fact that he received funds to invoke that right does not make him a transgressor of the Article. In my opinion, the pleas of guilty to accessory after the fact are improvident. The Uniform Code of Military Justice furnishes the Government with provisions to punish Specialist Michaels for his malfeasance and nonfeasance.3 However, Article 78 is not one of them.
. Senior Judge Jones concludes that the convening authority, by approving an amendment to the pretrial agreement, in effect referred the accessory after the fact charges to trial. I agree with his analysis. However, before arraignment, further or additional charges cannot be introduced at the same trial, unless the usual proceedings prior to arraignment have been completed covering those charges. United States v. Davis, 11 U.S.C.M.A. 407, 29 C.M.R. 223 (1960); Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 65b. It would appear then that the charges were improperly before the trial court and the issues surrounding those charges on appeal may be disposed of on that basis.
. United States v. Graves, 23 U.S.C.M.A. 434, 50 C.M.R. 393, 1 M.J. 50 (1975), citing United States v. Sikorski, 21 U.S.C.M.A. 345, 45 C.M.R. 119 (1972); United States v. Diaz, 22 U.S.C.M.A. 52, 46 C.M.R. 52 (1972); United States v. Brux, 15 U.S.C.M.A. 597, 36 C.M.R. 95 (1966); United States v. Beer, 6 U.S.C.M.A. 180, 19 C.M.R. 306 (1955). The exception to this principle is when the trial judge abrogates his sua sponte responsibility to instruct on uncharged misconduct at the request of the defense. United States v. Gruden, 2 M.J. 116 (C.M.A., 1977).
. See for examples Article 92, 10 U.S.C. § 892 (Derelict in duty by negligently signing fraudulent documents), Article 108, 10 U.S.C. § 908 (Suffering [through neglect] military property to be lost, damaged, destroyed, sold or wrongfully disposed), and Article 134, 10 U.S.C.A. § 934 (Bribery).