(concurring in the result):
I concur that the findings of guilty and sentence must be set aside and the Charge with its specifications dismissed. I reach this conclusion for different reasons, however. While I agree that the United States Supreme Court’s holding in Smyer v. United States, 273 U.S. 333, 47 S.Ct. 375, 71 L.Ed.2d 667 (1927), prevents us from finding that the United States government had title to the funds in question, I am persuaded by counsel’s argument that the United States had a superior right to possession of the money and that such is all that is required in a larceny prosecution. The allegation “property of the United States” encompasses this superior right to possession and I therefore do not reach the issue on which Judge Michel relies. I find reversal mandated for failure of the evidence. While prosecution exhibit 1 was admissible under the business entry exception to the hearsay rule to prove that a claim had been filed with the Post Office, it was not admissible for purposes of proving the truth of the assertion made therein by “Josten’s” that “No COD Rem’t”. United States v. Burge, 1 M.J. 408 (C.M.A.1976); United States v. Evanoff, No. 78 0820 (N.C.M.R. 28 November 1978); United States v. Burge, 50 C.M.R. 200 (N.C.M.R.1974). There was, thus, a failure of proof with regard to specification 5 of Charge II. As to specifications 1 through 4 of Charge II, there was also no admissible evidence that the senders of the COD packages had not received payment. I agree with appellate defense coun*656sel’s assertion that “[t]he admissible evidence of record does not support a finding of guilty respecting specifications 1, 2, 3, 4 and 5 of Charge II” and I would reverse for this reason.