(dissenting):
In my opinion, if the accused has surrendered his right to appeal by his unauthorized absence, his lawyer cannot appeal for him.
I do not construe United States v. Larneard, 3 M.J. 76 (C.M.A.1977), as overruling the limitation imposed by United States v. Smith, 22 U.S.C.M.A. 247, 46 C.M.R. 247 (1973), as Larneard did not involve an accused who was absent without leave. Rather, in Larneard, the accused had failed to advise the military authorities of his change of address after being sent home on “excess leave,” and this Court held that constructive service of the decision of the Court of Military Review was ineffective. It did not address the issue of an accused’s standing to petition this Court while he was absent without leave.
Apparently the majority find fault with the Navy’s regulatory scheme which permits the running of the 30-day period to appeal to this Court when defense counsel is served, but would stay the period when counsel has not been authorized to appeal and an accused cannot be served because he is absent without leave. If there is some inequality in such a scheme, the fault is this Court’s, not the United States Navy’s.
Prior to this Court’s decision in United States v. Larneard, supra, the regulation provided for constructive service of the opinion of the Court of Military Review when an accused could not be served because he was absent without leave. Accordingly, under the prior regulation, the 30-day period would have begun on the date of constructive service and all accused in an absent-without-leave status would have been treated equally. However, Larneard invalidated the long-standing practice of constructive service. Documents submitted to this Court reflect that the Navy’s regulatory scheme was modified to incorporate the requirements of Larneard and constructive service is no longer authorized. See United States v. Heflin, 1 M.J. 131, 132 n. 6 (C.M.A.1975).
Thus, any deficiency in the regulatory scheme has resulted from the refusal of this Court to recognize that constructive service is a valid means to terminate a court-martial proceeding when an accused has demonstrated his contempt for the appellate tribunal by committing another crime which makes actual service of the decision an impossibility. In United States v. Smith, supra, at 249, 46 C.M.R. at 249, citing Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), this Court refused to permit a defense counsel to “ ‘call upon the resources of the Court for determination of . . . [accused’s] claim’ ” when the accused had absented himself without leave. As the defense counsel involved in the present case is before the Court only as the representative of an accused who is absent without leave, I would dismiss the petition for grant of review.