(concurring in the result):
I agree with the lead opinion that the defense of duress was not raised by the *331evidence. The findings of fact by the Court of Military Review amply support a conclusion that appellant’s fear regarding her husband’s health, if genuine, was totally irrational. Since the requirement for some evidence of a “well-grounded fear” was not met, the defense was not raised.
I reserve judgment on the question whether the “necessity” defense, separate from the “duress” defense, is recognized in military criminal law.
SULLIVAN, Chief Judge (dissenting): The granted issue in this case is: WHETHER THE MILITARY JUDGE ERRED BY REFUSING TO INSTRUCT THE MEMBERS THAT DURESS WAS A DEFENSE TO MISSING MOVEMENT, WHERE APPELLANT TESTIFIED THAT SHE HAD MISSED MOVEMENT OUT OF FEAR THAT HER HUSBAND, WHO SUFFERED FROM A HEART CONDITION, WOULD HAVE A HEART ATTACK AT HOME IN HER ABSENCE WITHOUT ANYONE TO ASSIST HIM.
Based on the record before me, I conclude that the court members should have been permitted to consider appellant’s defense of duress. See generally Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704. 2708-09, 97 L.Ed.2d 37 (1987). I do not agree with the lead opinion’s conclusions that there was no evidence her fear was reasonable and the danger of death or serious bodily harm was immediate.
I believe that the lead opinion’s statement of the facts is not full and complete and it tends to rely on the Government’s version of the facts. Thus, I think it only fair to quote appellant’s statement of facts from her final brief, complete with citations to the record, in order to determine whether there was any evidence raising the defense.
STATEMENT OF THE FACTS
Appellant and her husband were active-duty soldiers stationed at Fort Lewis, Washington (R. 147-48). During the period 3-15 October 1990, appellant was sent on a field exercise to Yakima Firing Center, while her husband remained at home (R. 148). On the sixth day of that exercise, appellant learned that the wife of a Specialist (SPC) Holmes had died of a heart attack while Holmes was in the field (id.). Appellant was told that Holmes’ wife “had been dead for two days and her baby was all dehydrated in the apartment and everything and nobody had checked up on her or anything like that” (R. 149). Appellant was considerably distressed by this tragic news (id.), as her own spouse had suffered from high blood pressure for some time (R. 69).
On 9 October 1990, while appellant was still at Yakima and after she had learned about SPC Holmes, appellant’s husband suffered an “atrial fibrillation” at home and had to call an ambulance (R. 130). He was admitted to the hospital at Madigan, but appellant was not notified until two days later (R. 150). She was released from the field the day after she was notified, and went directly to Madigan to see her husband (id.). At the hospital, her husband was “really pale” and was hooked up to “a heart monitor or some kind of machine. He had an IV in his arm” (id.). He was in the hospital for about eight days (R. 132). Even after release, “[h]e was tired all the time and always—continually complaining about pains in his chest and down his left arm” (R. 151). He remained on medication (id.).
Meanwhile, appellant had been “scheduled to deploy to Fort Hunter Liggett” in November “to support a task force from this division for training up to Fort Irwin, California” (R. 55). While she was visiting her husband at the hospital, appellant was assured by her supervisor, Sergeant First Class (SFC) Sirwet, that she probably would be exempt from that field exercise (R. 71-72). About three or four days prior to the scheduled deployment, however, Sir-wet told appellant, “Well, they decided— they changed their minds. They need you to go now” (R. 154). Appellant related this to her husband, who was still having chest pains at the time, but told him, “I’m not *332going to leave you while you’re in this condition” (R. 133). Thus, at 1630 hours on 2 November, appellant told SFC Sirwet over the telephone that she would not be going to the field (R. 58). Sirwet persuaded her nonetheless to come to the personnel office and “talk about it” with him and Captain Chisholm, the officer-in-charge (R. 59).
At 1730, appellant arrived at the office, where she was confronted by Sirwet, Chisholm, the company commander, the first sergeant, and a lieutenant (id.). Appellant told them that she did not want to go to the field because “she didn’t want to experience what she had experienced at Yakima” (id.). Moreover, according to her testimony, she specifically voiced her concerns about her husband (R. 160). Appellant was so upset that she threatened to slit her wrists (R. 61, 74, 160), whereupon SFC Sirwet called the battalion chaplain (R. 61), who came to the office and spoke with appellant and her husband together (R. 119). Appellant told the chaplain she was afraid of “what would happen if [her husband] had another spell and if he were all alone” (R. 120). She thought “it was lucky” that her husband had made it to the hospital in time on the previous occasion (id.).
After her discussion with the chaplain, appellant was taken to Madigan for a mental status evaluation (R. 63). At no time during this series of events did hospital officials or appellant’s chain of command offer to provide assistance to appellant’s husband should appellant deploy to the field. Thus, on 3 November 1990, she failed to make the scheduled movement to Fort Hunter Liggett (R. 64). At trial, when asked why she refused to go on the field exercise, appellant testified, “I felt that my husband was going to have a heart attack and I wouldn’t be there to help him or maybe to save his life” (R. 164). The Government presented contrary evidence that appellant had told the chaplain and her chain-of-command that she simply disliked the field environment (R. 76, 81, 93, 122). Since the defense theory was that appellant had been afraid for her husband’s safety (R. 53, 119-20, 133, 164, 222-23), the defense requested that the military judge give the panel the standard instruction on the defense of duress (R. 191-96). The military judge refused, holding that, in his opinion, the danger to appellant’s husband was not “immediate” at the time of the offense (R. 194), and appellant’s fear for her husband’s safety was based on “pure speculation” (R. 239).
The defense of duress—or more accurately in this case, necessity (see United States v. Bailey, 444 U.S. 394, 409-10, 100 S.Ct. 624, 634-35, 62 L.Ed.2d 575 (1980))— is not new to military law. See United States v. Jemmings, 1 MJ 414, 417 (CMA 1976); United States v. Pinkston, 18 USCMA 261, 262, 39 CMR 261, 262 (1969). It is generally available to a servicemember who acts unlawfully because of a well-grounded apprehension or fear of immediate death or serious bodily harm to himself or another. We have generally followed federal law concerning this defense, and we have indicated our satisfaction with the Manual’s exposition of it. See generally United States v. DeHart, 33 MJ 58, 61-62 (CMA 1991); United States v. Beltran-Rios, 878 F.2d 1208, 1213 (9th Cir.1989). See RCM 916(h), Manual for Courts-Martial, United States, 1984.
In appellant’s case, we are specifically asked to review the judge’s decision not to instruct on the defense of duress. See United States v. Bailey, supra, 444 U.S. at 415 n. 11, 100 S.Ct. at 637 n. 11. It is not our role to consider de novo the reasonableness of appellant’s fear or the immediacy of the threatened death or serious bodily harm. However, we do consider de novo whether there was some evidence in the record from which the members could rationally conclude that appellant’s fear for her husband’s life or health was well grounded and whether there was any evidence that any threat in this regard concerned immediate harm. Id. See United States v. Watford, 32 MJ 176, 178 (CMA 1991); United States v. Schoon, 939 F.2d *333826, 827 (9th Cir.1991). The existence of contrary evidence does not negate the requirement for giving appropriate instructions on this defense. United States v. Jones, 13 USCMA 635, 640, 33 CMR 167, 172 (1963) (Kilday, J., concurring in the result); see generally Commonwealth v. Melzer, 14 Mass.App. 174, 437 N.E.2d 549, 555 (1982).
Some evidence was presented in this case that appellant had a well-grounded fear that her husband would suffer a fatal heart attack if she moved with her unit on November 3, 1990. See State v. Castrillo, 112 N.M. 766, 770, 819 P.2d 1324, 1328 (1991). First of all, there was evidence of her knowledge of the sudden death of a fellow soldier’s spouse from this same condition while that soldier was on field duty. In addition, her husband, Staff Sergeant Robert R. Rankins, testified as follows:
Q. Can you tell the court about your medical problem, starting with October 9th? What happened to you on October 9th?
A. On October 9th I was laying on my bed and I thought I was having a heart attack. I got tightness in the chest, my left side started hurting, I couldn’t breathe so I called 911.
Q. And then what?
A. And then the ambulance showed up at my house. They did a field expedient EKG on me. They didn’t know what was going on. They called Madigan and the doctor said to get me in immediately. Tacoma Fire Department said they couldn’t take me because they would cross their jurisdiction so I drove in myself.
Q. And when you got there how did you feel?
A. I felt the same, ma’am.
Q. What did Madigan do?
A. Madigan hooked me up to an EKG machine, started an IY on me, gave me tranquilizers, and I was going through atrial fibrillation, which the top portion of my heart stopped beating and the bottom just sat there and floated. It just kept my blood pressure going.
Q. What did you believe was happening to you?
A. I thought I was having a heart attack.
Q. What did the doctor tell you?
A. The doctor said I was having a—an irregular heart beat.
Q. How long were you in the hospital?
A. I was in the hospital about 8 days.
Q. Your condition, did it stabilize rather quickly?
A. In about two days.
Q. Did the doctors know what caused it?
A. No, they don’t.
Q. Were the doctors able to tell you that it wasn’t going to happen to you again?
A. They say it may happen again because I do have high blood pressure.
Q. Were they able to tell you that it wouldn’t be worse the next time?
A. No, ma’am.
Q. When did your wife find out about you being in the hospital?
A. My wife came to the hospital a few days after I was in the hospital.
Q. Okay. What took so long for her to get there, do you know?
A. Apparently, she was notified out in the field by—
TC: Objection, hearsay, Your Honor.
MJ: I’ll permit that.
Q. Go ahead.
A. Well, when she came to the hospital she said that she was out in Yakima and a private told her when she went up to utilize the latrine that “your husband is in the hospital.” This was a couple of days after I had been admitted.
Q. Okay. When were you released from the hospital?
A. The date, ma’am?
Q. About how many days later?
A. I was in the hospital for about 8 days.
Q. Did you go back to work?
A. Yes, I did, ma’am.
*334Q. Did you go back to PT?
A. Yes, I did.
Q. How were you feeling?
A. I had a pain all around the area of my heart, I had a sharp pain going through my chest.
Q. Did you tell your wife that you thought you’d had a heart attack?
A. Yes, I did.
Q. Did you tell your wife that you were continuing to have chest pains?
A. Yes, I did, ma’am.
Q. How did your wife handle that?
A. My wife was very upset.
(Emphasis added.)
As for the element of immediacy, appellant’s testimony provided some evidence that her husband’s heart problems were particularly exacerbated by her absence on trips to the field and that one was scheduled for November 3, 1990. Moreover, some evidence of military unresponsiveness to this situation was presented. See United States v. Jemmings, supra. The record states:
Q. Did Sergeant Sirwet come to the hospital?
A. Yes, immediately. Right after I got there. I’d say I was there for about 10 or 15 minutes and Sergeant Sirwet showed up and he said that “he’s sorry that he wasn’t there to pick me up at the bus.” He told the duty driver to get in touch with him instead of just coming to pick me up.
Q. Did he talk to you about going to the next field exercise?
A. Yes. He said, “Rankins, don’t worry you won’t have to go to—you won’t have to go back out to this field problem at all. You’re going to be here with your husband. You’re going to be my mail clerk this next field problem coming up so don’t worry about being away from him.”
Q. Okay. How long was your husband in the hospital?
A. For about two weeks.
Q. What did your husband tell you happened to him?
A. That he had a mild heart attack and high blood pressure.
Q. When he was released was he back to his normal self?
A. No.
Q. How was he different?
A. He was tired all the time and always—continually complaining about pains in his chest and down his left arm.
Q. Was he still on medication?
A. Yes, he was still on medication. He was still an outpatient at the hospital.
Q. Why do you believe—why did your husband have a heart attack?
A. Well, when he was in the hospital the doctors couldn’t find out. They said they didn’t know why he had a heart attack or whatever. They said that they thought it was maybe stress. So, they had him talk to a psychiatrist and some—a Colonel up there and she said that—
TC: Objection, Your Honor, hearsay.
MJ: Well, it’s her belief as to why she thought he had a heart attack. I’ll , permit that.
A. He had to talk to a Colonel up there and she said that it—“why— what do you think is the problem?” to him and he said, “it’s because me and my wife are always separated. I just came from BNCOC, now she’s living in the field, and every time I turn around we’re separated and I just can’t”—he couldn’t take the stress or the pressure. He was tired of us being separated. He just wanted me to be out of the Army.
Q. Okay. Has anything like this ever happened before?
A. Like in BNCOC?
Q. Him having medical problems when you’re apart?
A. Yes. He—the—when he went to BNCOC he was there for about six weeks and, first, he had high blood pressure. He said he fell out in class and they took him to the hospital *335and. he was there for one day. The second time he had to be rushed to the hospital again. He was in the hospital for about two days with high blood pressure. It just seemed like it kept getting worse. And then after that, when he came home from BNCOC, he said that—from BNCOC— he said he was doing okay but he had like 10 or 15 bottles of medication. He had all kinds of stuff happen to him when he was there. And then when he came home he said, “Honey, I’m okay. This medicine is taking care of my high blood pressure. I’m doing just fine.” So,—and then they told me I had to go to Yakima and I said, “well, okay. It’s only going to be a little while.” He told me he’s okay so I believed it and I went to Yakima. And the next thing I know I’m getting called back. He said he had a heart attack and more high blood pressure.
Q. When did he return from BNCOC with all the medication?
A. I don’t—it was about two weeks before I went to Yakima.
Q. Did you believe that your husband was completely recovered on 2 November ’90?
A. No.
Q. Why not?
A. Because he was still complaining about the chest pains, even though he said he was okay. He’s like the really gung ho type of person. He’ll try to do his best—I think that he could do a lot—He might even kill himself trying to be the best or whatever but I don’t feel he was in—I knew he was in bad shape because he was still complaining.
Q. What did you believe would happen to him if you left him at that point?
A. I felt that he would have another heart attack and this time I would be in California and I wouldn’t be able to get back and see him.
(Emphasis added.)
Finally, there also was some evidence presented that appellant took reasonable steps to avoid this potential crisis:
Q. Okay. After Sergeant Sirwet told you that you didn’t have to go on the next field exercise, when did you learn that you would have to go?
A. About three to four days before the actual field problem.
Q. Okay. Why didn’t you find out until three or four days before the field problem?
A. Because he told me I was going to be—I was going to be a mail clerk there and all of a sudden he—he just told me, “Well, they decided—they changed their minds. They need you to go now.”
Q. So what did you do?
A. What did I do?
Q. Yes.
A. Well, I was really upset because I was afraid that—I was like, “now, if I go I’m going to have to go to California and leave my husband.” I didn’t know what to do. But I knew I had to go to the field because they knew— Sergeant Sirwet knew my husband was in the hospital and all that and he didn’t seem to care so I didn’t know what to do. So, I just prepared to go to the field.
Q. Did you make appointments with anyone?
A. We had an appointment because my husband had to see like this stress psychology [sic]—somebody up in mental health—community mental health.
Q. Okay.
A. And we had to see a major up there and we had been—we’d seen him, I think, twice and this time we were supposed to talk to a colonel. And he said that he was going to do something to help us because the stress was—he felt, after he talked to my husband, was caused because we were separated so much. And that he was going to see us on Wednesday and then he called back and he said he changed it to Thurs*336day. Then he changed it to Friday in the morning—that Friday.
Q. Okay. Friday, November 2d?
A. Yes.
Q. Why didn’t you tell the chain of command once you found out that you were designated to go—why did you let four days go and you didn’t tell them that you couldn’t handle it, that you couldn’t go because you wanted to be with your husband?
A. Because I—me and my husband we were going to this mental health thing and this major said that he would help—he was going to help my husband. He was going to let us talk to this colonel this time and she was going to take care of things for us. And my husband explained, “do you know that they want to send my wife to the field this afternoon?” or something. Well,—no, he said, “Well, do you know they want to send my wife to the field on Friday?” and that was the last time we had seen him. And he said, “Well, I will let you speak to the colonel and she will handle this[.]” The colonel at this mental health place.
Q. So, let’s go to the 2d of November in the morning. What happened? Start from the beginning.
A. That was the day—Was that Friday?
Q. Yes.
A. Okay. We had this appointment. We went up to see this colonel and we talked to Major Dunn, I think his name was. And all of a sudden he had changed his mind. He didn’t want us to—he was just relaying a message to the colonel. We didn’t get to see her at all. And he said, “We can help you” to my husband. He said, “We can help you but—we can give you all these tests first—we have to give you all these tests first. But for your wife to get any help she would have to go through the chain of command—the chain of command to get any help.”
Q. Okay. So then what did you do?
A. My husband said, “No, we need—I wanted her to be with me.” Or he wanted me to be with him now and “that’s okay.” He said, “just forget it” and we left there.
Q. So then what?
A. We went home. We went directly home. I had started packing my— Well, my TA50 was already packed. I had started packing some of my other stuff—my other clothes. And then I stepped out and I was thinking. “I don’t know what to do____”
(Emphasis added.)
An American servicemember has a constitutional and codal right to defend himself or herself at a court-martial. The majority today eviscerates this right by utilizing the rubric of judicial reasonableness to preclude even consideration of her defense by court members. Her defense to the charge was not a strong one, but it was her only one. In my view, the majority’s concerns are properly questions of fact for the court members to decide. See United States v. Bailey, supra 444 U.S. at 414-15, 100 S.Ct. at 636-37.