(concurring):
In United States v. Larneard, 3 M.J. 76 (C.M.A.1977), this Court authorized two *219methods of service that would commence the running of the 30-day period granting an accused for filing his petition for review with us. One method was by personal service on him; the other was by service upon his attorney who had been specifically authorized to accept such service “through the execution of a power of attorney clearly defining that authority”. Id. at 81. Also, the Court stated that under its own rule-making power, see Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(1), it could adopt rules of procedure authorizing constructive service — like that which was unsuccessfully attempted in Larneard; but up to this time the Court has not adopted any rule of procedure on this point.1
Since it proved impossible to obtain personal service on the accused after the United States Navy Court of Military Review rendered its decision, his appellate defense counsel was served — as Schreck had specifically authorized in his power of attorney. This procedure, which started the 30-day filing period, accorded with naval directives; they, in turn, complied with Larneard.
While an accused makes a final decision as to whether a petition for review should be filed, Larneard recognizes a broad scope for delegation to his attorney — including the actual execution and transmission of the petition for review. When a petition is filed with us by an appellate defense counsel who has been representing an accused and who has received from him a power of attorney to accept service of the decision of the court below, I see no basis for our making further inquiry into the authority of the attorney to file the petition.
Appellate government counsel insists that, in light of United States v. Smith, 22 U.S.C.M.A. 247, 46 C.M.R. 247 (1973), Schreck’s unauthorized absence precludes either him or his counsel from filing a petition for review. Since such a result would penalize the accused who relies on the power of attorney procedure authorized by Larneard and the regulations stemming from that decision, the rule in Smith seems inconsistent with Larneard. Secondly, in holding “ineffective” the filing of a petition for review by an accused who at the time was absent without authority, Smith sought to restrict a right which Congress had given in unqualified terms. Furthermore, the Smith rule is difficult to administer and may have harsh results. What if an accused is absent on the day that the petition is filed by his counsel but then returns to duty long before the expiration of the 30-day period? Would it be reasoned that the petition was a nullity because the accused was absent on that date and so he had never invoked this Court’s jurisdiction? What if he is in a duty status on the date of filing the petition but becomes absent without authority on the next day, although prior to action on the petition by the Court? Who will make the final determination as to whether the purported appellant is in a status of unauthorized absence or what sort of hearing will be required if he disputes that determination? For persons who are in an “appellate leave” status, what constitutes unauthorized absence? Is it merely a failure to notify military authorities of a change of address? If an accused has been sentenced unjustly to a punitive discharge and 10 years confinement, does he forfeit the right of review in this Court because he is absent without authority on the date when the petition for review is filed with us?
If a defendant who has initially been present at trial later absents himself, he waives his right to be present during the rest of the trial; but he does not forfeit his right to a fair trial. Cf. Fed.R.Crim.P. 43. In the absence of any indication from Congress to the contrary, I conclude that similarly an accused who is absent without authority does not forfeit his right to petition for review.
In our review we “take action only with respect to matters of law.” Article 67(d), *220UCMJ, 10 U.S.C. § 867(d). Typically, an accused will have little to contribute to the contents of a petition for review or to supporting briefs and argument. Cf. Fed.R. Crim.P. 43(c)(3). Thus, our disposition of a petition for review on its merits need not be tolled in any way during the absence of an appellant — regardless of the authority for such absence.
In sum, to grant the government’s motion to dismiss would be inconsistent with Larneard and would commit us to a rule that, in my view, promises mobe loss than gain.
. However, constructive service by mailing to the accused’s last address, as shown in his service records, would be specifically authorized under the terms of a bill now pending in the House of Representatives. H.R. 6406, 96th Cong., 2d Sess. § 945(b)(2) (1980).