(dissenting):
I am forced to enter my dissent for I am unable to agree with the conclusions expressed in the majority opinion, in the following respects:
The evidence is not clear as to the accused’s intent regarding the division of moneys received from the sale of the aluminum matting. On prior occasions, the accused had taken his own personal funds and utilized them for welfare purposes for his subordinates. Whether he intended to retain one-fifth of the money from aluminum sales for himself, or to use two-fifths, his full share, for his subordinate’s welfare is speculative. The facts do not warrant the conclusion that the former choice was that of the accused. The latter choice is considered an equally logical alternative. Therefore, I do not agree that the accused intended to keep any portion of the money for himself. The record does not support that conclusion with any degree of certainty. I do not find the prosecution evidence to be so compelling toward guilt that the exclusion of the defense proffered statement of Lieutenant Colonel Stoner made no difference in the decision of the court-martial.
I do not agree that exclusion of the Stoner statement, wherein similar offenses are admitted, was proper. The court should have considered that statement. I do not agree that exclusion of the Stoner statement was nonprejudicial to the accused.
I do not agree that the findings and sentence are correct in law or fact, or that the sentence should be approved.
Warrant Officer Bessette is convicted of the theft and wrongful sale of aluminum airfield matting on two separate occasions, and of the theft and attempted sale of additional matting a short time later. Articles 80, 108 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 908 and 921, are the statutory offenses charged and found. Mr. Bessette was sentenced to dismissal from the service. He appeals, making the following assignment of error, inter alia:
THE TRIAL JUDGE ERRED TO THE MATERIAL PREJUDICE OF THE ACCUSED IN REFUSING THE ADMISSION INTO EVIDENCE OF LIEUTENANT COLONEL STONER’S WRITTEN STATEMENT.
An overview of the record of trial shows the accused was party to the theft of about 200 sheets, 28,000 pounds, of aluminum airfield matting in the possession of the unit under his charge. All but about 10,000 pounds of the matting was sold in the civilian community at a rate of about 20 cents per pound. The proceeds were to be divided between two civilian truckers, a noncommissioned officer serving under the accused, and the accused. The culprits were apprehended before the last sale of matting was perfected and some of the proceeds of sale were divided.
Rectangular sheets of aluminum matting, 2 feet in width by either 6 or 12 feet in length and about 2 inches thick, are used by Marine Corps air units as airplane runway surfacing. Each 2 X 12-foot sheet weighs about 144 pounds. The sheets are constructed so that they interlock to provide a firm one-piece runway surface. Use of the aluminum matting for the noted purpose results in deterioration of the sheets. That deterioration may be caused by jet blast, *742hard blows, and bending due to softening of subsurface foundation, weight bearing, and weathering. If the matting becomes bent or torn, or otherwise deteriorated, it may no longer be of value as a runway surface. In that case, it may be used to provide such things as a hard stand for equipment storage, as bulwark in excavations, and as pathways in muddy areas. Possessory control of and accountability for the matting is rather strictly limited due in part to its expensive and unique nature. Rarely, the matting may become unusable. In that event, it is to be disposed of in the best interests of the Government; for it is Government property no matter its condition. Storage of deteriorated matting may present a problem if it is stored in an airfield area—it may be unsightly and it may be a safety hazard.
In addition to aluminum matting, a Marine airfield uses certain wire cable, nylon line, and nylon webbing in launching and recovering airplanes. Useful life of that equipment is limited by time, weather, and wear factors. After certain usage, the equipment becomes unsafe or unserviceable—it must then be disposed of by responsible authorities. Assuredly, it is not left to pile up near operational areas.
Little imagination is needed, given the above comments, to foresee an air station becoming a magnificent junk pile of worn, unsafe, and unsightly material unless that material is removed. It is obvious that some used material may be valueless, while other portions of the material may have substantial value, e. g., as scrap metal. Further, it is noted that certain regulations exist as to the packaging of scrap material which is to be turned in to military salvage activities for disposition. For example, wire cable must be sawed into certain lengths—in some cases that cable must be cut into several hundred pieces—and banded together into bundles. The unit desiring to be rid of the unusable material is normally responsible for packaging and delivery of the material to a disposal activity at the expense of considerable labor. As a consequence, it is not surprising that certain scavenging practices arise. It is easier to allow an unofficial disposal of waste material of minimal or no value by obtaining a junkman to haul it away at no cost. The latter practice seems to have become an accepted procedure by some personnel at the activity where the accused found himself on duty.
The accused was told by his commanding officer to dispose of certain material, including used aluminum matting, in his area. He inquired as to appropriate disposal procedures. He was told to place the aluminum on pallets to turn it in. The accused was also aware that scavengers were hauling some material away with the apparent approval of superiors, or at least in accordance with custom in force several years. The record shows a long period, consistent visitation by civilian non-contract junkmen to haul away unwanted trash from the squadron area. The appellant sought advice from friends, higher authority—the Air Group command—and from his noncommissioned officer staff. The latter worked out an arrangement whereby the matting would be hauled away in a civilian truck and sold. The proceeds were to be divided between the civilian truckers, the non-commissioned officer, and the appellant. That arrangement gave rise to the charges.
The above practices contravene proper disposal procedures for Government-owned property. It may save time and effort of personnel, but it ultimately results in the circumstances shown here—sooner or later the determination as to whether used material has some value to the Government becomes warped beyond the margins of the appropriate exercise of discretion. Greed and potential profit enter into the consideration afforded to the disposal decisions.
The accused, in defense of his action, indicates he intended to use his share of the proceeds of sale of the aluminum to establish a welfare fund for the personnel for whom he was responsible—denying criminal guilt for that reason, because he knew other officers had done essentially the same thing and he thought it was an appropriate procedure. His intent was to remove the unusable material as he had been directed to do, *743at the same time precluding profit by scavengers and obtaining money for troop welfare by imitating the common practice. The accused’s theory of defense was that it was a practice at the command to sell waste material and utilize the proceeds of sale to promote troop welfare. He maintained he had made inquiry as to disposal procedures, which resulted in his discovery of the foregoing practices.
The record shows that a Major and Lieutenant Colonel sold waste computer paper in the civilian market to augment a squadron recreation fund. The accused was told of that practice. The evidence of record shows that the accused had inquired as to proper disposition procedures for scrap without receiving much but erroneous guidance, prior to commission of the noted offenses. The record also shows that at least three individuals in positions of authority over the accused concerning disposition of property, and in the next superior command to the accused’s, have refused to testify as to their scrap-material disposition practices. The court members were properly left unaware of their refusal to testify.
The statement at issue indicates Lieutenant Colonel Stoner, then a Major, had sold Government-owned waste computer paper to a civilian business and used the sale proceeds in a unit welfare fund. That procedure was with knowledge of the responsible commanding officer. The value attributed to the statement was a showing that the appellant, in his acts of selling Government-owned aluminum, was merely following common practice as shown by Lieutenant Colonel Stoner’s lead, to obtain welfare funds for unit use (Government benefit) by sale of junk which would otherwise be thrown away or hauled off by a junkman. At trial, Lieutenant Colonel Stoner invoked his right to remain silent concerning his sale activities. Nevertheless, it does appear Colonel Stoner was acting as a staff officer on a staff immediately superior to the command to which accused belonged at the time of sale of the paper and that he was responsible for disposition of such property. Further, it appears that the accused called the Colonel’s office seeking advice on disposal procedures.
The military judge refused to allow the court to consider the Stoner statement. The reasons:
a. It is hearsay.
b. It involves a different event.
c. It is not under oath.
d. Appellant’s testimony as to his basis for selling aluminum has not been attacked.
e. It is remote.
f. It is not relevant. (See R. 418, 419).
That evidence consisted of an admission by a third person (officer) that he had committed similar practice at about the same time, at the same activity, and for a similar purpose. Although such evidence is ordinarily inadmissible because it lacks relevancy and is remote in character, 22A C.J.S. Criminal Law §§ 622, 683, 691(9)b (1961), it is thought to have been relevant and admissible in the instant case. That evidence corroborated other defense evidence and testimony. It tended to strengthen the credibility of accused’s testimony. Further, that evidence lent credence to the accused’s defense that he lacked a wrongful intent, mens rea, and a specific criminal intent to deprive the Government of the use and benefit of its property in that he considered his acts authorized, or at least in consonance with generally accepted practice at the time. (See R. 311, 468). Exclusion of the evidence worked substantial prejudice on the accused. I am unable to conclude the court would have found the accused guilty had it heard the excluded statement.
The proffered statement bears directly and ultimately on the existence of criminal intent on the accused’s part. It was relevant in that context. MCM, 1969 (Rev.), para. 137; Fed.R.Evid. 401. The declarant witness was unavailable because of his refusal to testify. The statement was contrary to the declarant’s penal and proprietary interests. The statement was made in the course of an official investigation. It is of an exculpatory nature to the accused. It appears to have been made after proper warnings were given. It corroborates ap*744pellant’s defense. It shows a common practice by superior authority. The statement is considered to be admissible as evidence. Corroborating circumstances clearly show it to be trustworthy. United States v. Johnson, 3 M.J. 143 (C.M.A.1977); Fed.R.Evid. 804. By exclusion of the statement, the court was denied the opportunity to consider all competent evidence in behalf of the accused. That denial was substantially prejudicial to the accused because it would have corroborated his testimony and theory of defense. Exclusion of the statement prevented that corroboration. Whether the court members would have believed that evidence or theory is of no consequence to this disposition. The accused should have been allowed to use the evidence. United States v. Schmidt, 16 U.S.C.M.A. 57, 36 C.M.R. 213 (1966); United States v. Doyle, 3 U.S.C.M.A. 585, 14 C.M.R. 3 (1954); United States v. Skeen, 16 C.M.R. 754 (A.F.B.R. 1954). But see United States v. Voorhees, 4 U.S.C.M.A. 509, 544, 16 C.M.R. 83, 118 (1954) (Brosman, J., dissenting). It cannot be said that this evidence would not have resulted in different findings by the court. Doubt must be resolved in favor of the accused.
I consider the third assigned error to have substantial merit, as noted. I find the exclusion of the Stoner statement was substantially prejudicial to the rights of the accused inasmuch as he was precluded from providing weighty evidence to buttress his theory of defense.
Additionally, I must note that if, as my brothers assume, the findings are correct, this Court has not met its responsibility to assure some equality of punishment in the military justice system. I believe the sentence is unduly severe in light of the punishment meted out in similar cases noted in this record. United States v. Palenius, 25 U.S.C.M.A. 222, 54 C.M.R. 549 (Interim), 2 M.J. 86 (1977).
I find the remaining assignments of error to be without merit.
I would set aside the findings and sentence and authorize a rehearing.