(concurring in the result):
I would note that once again there appears to be serious confusion resulting from a Court of Military Appeals decision. United States v. Verdi, 5 M.J. 330 (C.M.A.1978), states specifically:
The jury must be instructed that where an exception is contained within the criminal statute or regulation, the burden of proof is upon the prosecution also to prove that the accused does not fall within the exceptions contained in the statute. [Emphasis supplied].
The Office of the Judge Advocate General publication, Off the Record, 1 November 1978, states that the above language from Verdi is dictum. It claims this dictum is contrary to prior military law. United States v. Mallow, 7 U.S.C.M.A. 116, 21 C.M.R. 242 (1956). Off the Record also cites United States v. Rosenberg, 515 F.2d 190, Annot., 33 A.L.R.Fed. 196 (9th Cir. 1975), cert. denied, 423 U.S. 1031, 96 S.Ct. 562, 46 L. Ed.2d 404 (1975). Nevertheless, it appears in the Rosenberg case that the statute in question had a provision specifically exempting the Government from proving up exceptions contained in the statute. Accordingly, Rosenberg is not directly on point. Rosenberg also states, “We find nothing wrong with this provision. It is a common provision in criminal statutes that contain many exemptions or exceptions. Without such a provision the Government would be required to waste valuable court time disproving arguments that a defendant did not and could not conceivably make.” [Emphasis supplied].
There seems to be'no doubt, however, that the military rule has heretofore been that the accused must offer some evidence to bring himself within any exceptions contained in the statute. This is not to say that the burden of proof shifts from the Government. We have emphasized before that the burden of proof never shifts in a criminal case. The Government must establish a prima facie case against the accused by showing that he violated the statute. At this point, the burden of going forward with evidence to indicate the applicability of an exception to the statute shifts to the accused. In my opinion, the military has the preferable rule in requiring the accused to come forward with some evidence indicating that he falls within the exceptions before the burden to disprove the applicability of the exception devolves upon the prosecution. Therefore, I concur in the majority decision.
Of course, once more, we may be headed into the same type of quagmire which resulted from United States v. Williamson, 4 M.J. 708 (N.C.M.R.1977), where the majority opinion took the position that affidavits could be used to regenerate an improvident plea. That position was later rejected by the Court of Military Appeals. As a result, many cases foundered procedurally and charges eventually had to be dismissed.
*591Again, we seem to be sailing at flank speed, in thick fog, with no one on the bridge or helm. If the Court of Military Appeals holds fast to the position that exceptions must be proved up, then many cases will have to be returned to convening authorities. This will result in many charges being dismissed. Moreover, in light of all this, it may be asserted that military judges are under a duty, when an accused pleads guilty, to insure in the providency inquiry that the accused does not come within the exceptions.