(concurring in the result):
The intermediate appellate court, as provided for under the Uniform Code of Military Justice, is unique among Federal intermediate courts in that Congress specifically charged that court in Article 66(c), UCMJ, 10 U.S.C. § 866(c), with the following obligation:
*269(c) In a case referred to it, the Court of Military Review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.
(Emphasis added.)
Without using the word “clemency” or any of the standard synonyms for that power, Congress granted this authority to the Courts of Military Review.
The present case, in accord with the facts set out in my Brother’s opinion, demonstrates a classic case of racial intolerance. We do not know from the record the cause of this intolerance; we are only presented with it. If history serves as any telltale sign, we can assume color alone would be a sufficient cause; hopefully, only personality differences would not give rise to the fear expressed by both the assailant and the person assailed in these facts. Accidental place of birth of either tormentor or tormented frequently gives rise to this all-too familiar pattern, not only in the military but in general society.
The ultimate legal question before the Court is not why the confrontation existed, but whether it gave rise to a mental attitude sufficient as an affirmative defense to excuse disregard of the law. If not rising to this very high plateau,1 then does it rise to a lesser summit that requires consideration of a lesser punishment for the violation of the law? This case reaches the lesser summit.
The military judge, realizing that the evidence in this case did not constitute a total defense, did, after argument by defense counsel, consider the evidence in the matter of sentence and recommended suspension of the bad-conduct discharge, with conditions. The convening authority, however, suspended confinement in excess of 90 days, after considering, along with other matters, a clemency petition submitted by the trial defense counsel.
The Code, as stated above, charges, in effect, the Court of Military Review with the responsibility to assure, based upon the entire record, that an appropriate sentence be approved. I agree with government counsel that as this charge is implicit in the statute, we must assume the court considered the total record, and, noting the above-stated actions by the trial judge and the convening authority, approved the sentence.
This conclusion, however, does not answer the question presented before this Court.2
WHETHER IN VIEW OF THE CIRCUMSTANCES OF THIS CASE AND THE BROAD POWER POSSESSED BY A COURT OF MILITARY REVIEW, THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL’S FAILURE TO BRIEF AND ARGUE THE ISSUE OF SENTENCE APPROPRIATENESS BEFORE U.S. NAVY-MARINE CORPS COURT OF MILITARY REVIEW.
In most cases, absence without leave is an offense that either occurred or did not; there is no in-between. One may either be present for duty or absent by leave of proper authority. The Government’s burden of proof is to show that a member was not present or accounted for.
Why a person places himself or herself absent is of little moment to the issue of whether one is guilty of being absent without leave. It is of the utmost moment as to sentence; the details of the “why” should be set forth at every opportunity of review. The “why” is just as necessary to the Government as to the defendant if an appropriate sentence is to be arrived at and *270approved. He who would use the “why” to his advantage has the burden of bringing it to the attention of the trial judge and those in a position of review. This is a light burden, for the facts will generally speak for themselves and little additional argument will be needed. Where the facts speak directly to the extenuation and mitigation, it is counsel’s obligation to call these facts to the attention of those with the authority to extenuate and mitigate.
Does the fact that appellate defense counsel does not call facts of extenuation and mitigation to the attention of the Court of Military Review deprive appellant of the effective assistance of counsel? In most crimes, generally known in the civilian sector of our society as misdemeanors or felonies, the answer would be no. In strictly military offenses the motivation for the commission of the offense may be of more importance to a stable military society, and to arriving at a fair sentence, than the crime itself. Such an offense is absence without leave where the facts are as in this case. Accordingly, I would answer the question in this case affirmatively.
. Para. 216f, Manual for Courts-Martial, United States, 1969 (Revised edition).
. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).