dissenting:
I dissent from the decision denying en banc reconsideration of Rios.
It is my view that the affirmative defense of voluntary abandonment was not adopted into military law by the decision in United States v. Byrd, 24 M.J. 286 (C.M.A. 1987). Because Byrd does not represent a clear recognition of the affirmative defense of voluntary abandonment in military law,1 we should not feel compelled to apply it here. I share Judge Cox’s concern about making substantive law on a guilty-plea record.
A substantive provision of the 1984 Manual for Courts-Martial [hereinafter MCM, 1984], which took effect after the case in Byrd arose, rejects voluntary abandonment as an affirmative defense in military law:
For example, the accused could commit an overt act, and then voluntarily decide not to go through with the intended offense. An attempt would nevertheless have been committed, for the combination of a specific intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense.
MCM, 1984, Part IV, para. 4c(2) (emphasis added).
Our Court concluded in United States v. Valenzuela, 15 M.J. 699, 701 (A.C.M.R. 1983) that “military law does not recognize such a defense.” The holding in Valenzuela is consistent with a long history of military precedents that reject voluntary abandonment as an affirmative defense.2
*506Paragraph 417 of the Manual for Courts-Martial, United States, 1921, rejected the doctrine in straightforward terms: “Voluntary abandonment of purpose after an act constituting an attempt is not a defense.” The interpretation in the Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, likewise rejected the defense: “[A]n accused is guilty of an attempt under the Uniform Code if he has committed acts requisite to constitute an attempt even though of his own accord he desisted before the consummation of the intended offense.” Id. at 249 (emphasis added).
The Analysis of MCM, 1984, para. 4c(2) again rejected voluntary abandonment citing United States v. Emerson, 16 C.M.R. 690 (A.F.B.R.1954). The Emerson court held that the attempt offense was completed after the overt act, and the accused’s “self-serving declarations ... of repentance and intent not to commit the substantive offense, were immaterial to his innocence or guilt as his actions had passed beyond a locus poenitentiae which would acquit him of the offense charged.” Id. at 698.
Absent explicit guidance from the Court of Military Appeals, we should not implicitly adopt a doctrine that has not been accepted generally in the federal courts. Although a few of the federal circuit courts have recognized the defense, apparently none have explicitly adopted it and several have rejected the doctrine or severely limited its application. See, e.g., Fryer v. Nix, 775 F.2d 979, 993 (8th Cir.1985) (“[o]nce ... an act [beyond mere preparation calculated to bring the desired result to fruition] is committed, the attempt is under way, and any subsequent termination, though voluntary, is not a defense.”); United States v. Joyce, 693 F.2d 838 (8th Cir.1982) (evidence of an incomplete cocaine purchase insufficient to establish attempt; voluntary abandonment doctrine neither discussed nor adopted); United States v. Bussey, 507 F.2d 1096, 1098 (9th Cir.1974) (“[a] voluntary abandonment of an attempt which has proceeded well beyond preparation ... will not bar a conviction for the attempt.”); United States v. Jackson, 560 F.2d 112 (2d Cir.1977) (voluntary abandonment doctrine quoted in dicta in review of an attempted bank robbery; the doctrine was not an issue in the case), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977); United States v. McDowell, 705 F.2d 426 (11th Cir.1983) (voluntary abandonment doctrine not raised; even if a valid defense, not present on facts of an attempted cocaine possession transaction), reh’g denied, 714 F.2d 106 (11th Cir.1983); United States v. Rivera-Sola, 713 F.2d 866 (1st Cir.1983) (“reverse sting” operation by government agents in attempted purchase of drugs; no discussion or adoption of the doctrine); United States v. Williams, 704 F.2d 315 (6th Cir.1983) (fifth amendment voice identification case involving attempted purchase of cocaine; discussion of voluntary abandonment limited to a “Cf.” citation to Joyce — doctrine not discussed or adopted), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983); United States v. Bagnall, 907 F.2d 432 (3d Cir.1990) (Mansmann, J., dissenting) (majority, who found no attempt violation and did not reach voluntary abandonment issue, should have applied the defense to resolve case); United States v. Dworken, 855 F.2d 12 (1st Cir. 1988) (abandonment defense acknowledged but not adopted; 1st Circuit disagrees with the 2nd and 8th Circuits’ analysis of attempt/ abandonment cases).
I also have significant reservations about this court apparently adopting an affirmative defense that would completely excuse criminal conduct even though all elements of an attempt crime have been proven beyond a reasonable doubt. In my view, law, order, and discipline require that soldiers not be allowed to commit acts sufficient to constitute an attempt and then be excused for their criminal conduct.
*507Even if we disregard the significant legal and policy issues that should be resolved, the defense was not available on the facts of this case.
An accused can not assert voluntary abandonment after the attempt offense is consummated by taking the last proximate step necessary for the commission of the attempt. See Fryer, 775 F.2d at 994 (once an act is committed that shows the accused intended to complete the crime, the crime of attempt is complete and “later termination, though voluntary, is irrelevant.”); Bussey, 507 F.2d at 1098 (“[a] voluntary abandonment of an attempt which has proceeded well beyond preparation ... will not bar a conviction for attempt.”); People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 396, 668 P.2d 697, 703 (Cal.1983) (“when the acts are such that any reasonable person would believe a crime is about to be consummated absent an intervening force, the attempt is under way, and a last-minute change of heart by the perpetrator should not be permitted to exonerate him.”). In this case, passing the robbery notes to the store clerks was the last proximate step necessary for completion of the robbery.
The affirmative defense also was not available in this case because appellant’s abandonment was not complete and voluntary. See, ALI Model Penal Code § 5.01(4) (1962), reprinted in ALI Model Penal Code and Commentaries, 296-97 (1985). As the panel noted in its decision of this case, “outside causes, i.e., unanticipated difficulties (the plan went awry); unexpected resistance (store employees refused to comply); and, circumstances which increased the likelihood that he would be detected or apprehended (an earlier failed attempt), all militate against, not reinforce, the defense of voluntary abandonment.” Maj. op. at 503.
The judge elicited responses that showed that the appellant had taken the last proximate step necessary for the robbery. The appellant’s own testimony indicated he intended to rob at the time he passed the robbery notes to his victims. Because the facts show that, as a matter of law, a possible affirmative defense was not raised, the guilty plea should not be held to be improvident merely because the military judge did not inquire in great detail into the appellant’s reasons for leaving the crime scene. Therefore, voluntary abandonment was not applicable and additional guilty plea inquiry was not required for a defense that was unavailable as a matter of law. See United States v. Timmins, 45 C.M.R. 249 (C.M.A.1972).
In this case it is unnecessary to direct the military judge to inquire into the defense of voluntary abandonment to determine whether appellant really intended to go through with his crime. If this court determines that sufficient questions are raised about appellant’s state of mind on the day he chose to try his hand at robbery, then the solution is to focus the new plea inquiry on the intent element of attempted robbery.3 In ordering the rehearing in Rios, this Court need not have apparently adopted a new affirmative defense.
Acting Chief Judge JOHNSON, Senior Judge NAUGHTON, and Judge CORRIGAN join in this dissent.. Chief Judge Sullivan did not participate in the decision. Judge Cox refused to join the lead opinion in its adoption of the law of voluntary abandonment on a guilty-plea record. Therefore, the precedential value of that opinion is unclear.
. Although a panel of the Navy-Marine Court of Military Review recently recognized voluntary *506abandonment as an affirmative defense in United States v. Walther, 30 M.J. 829 (N.M.C.M.R. 1990), and limited its application in United States v. Miller, 30 M.J. 999 (N.M.C.M.R.1990), those opinions fail to address the Manual provision supra, and assume the defense is available without discussing the substantial body of law to the contrary.
. The colloquy between the military judge and appellant highlights the issues:
MJ: I see. Okay. Okay. Now, did you — and did you give that note to a lady at the checkout counter in the Lion — Food Lion?
ACC: The note was folded with the letters not being visible. I had it in my hand, walked up to her. As best that I can recall, Your Honor, I told her that, if I was to give her this note, I'd probably get myself in a lot of trouble. She then took the note out of my hand, read it, gave it back to me, and said, "Yes, you sure would get in some trouble.” At that time, I said, “Well, I’d better not decide to go through with something like this," and proceeded to leave the store.