Opinion
COOK, Judge:
This case has a long history. The appellant was originally convicted by a general court-martial on March 28, 1970, of unpremeditated murder, larceny, and consummated assault with a dangerous weapon (five specifications) in violation of Articles 118, 121, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 918, 921, and 928, respectively. On July 13, 1971, the United [178]*178States Army Court of Military Review set aside the action of the convening authority and returned the case for a new review and action. .The findings and sentence were approved by the second convening authority, and on February 22, 1972, the Court of Military Review affirmed his action. United States v. Peebles, 45 C.M.R. 406 (A.C.M. R.1972). However, this Court, in an opinion dated June 22, 1972, reversed that decision on the basis the appellant’s pretrial statement was improperly admitted into evidence and authorized a rehearing. United States v. Peebles, 21 U.S.C.M.A. 466, 45 C.M.R. 240 (1972). Our mandate issued on July 5, 1972.
While this case was in the course of review, the áppellant was convicted by another general court-martial on May- 20,1971, of escape from Confinement and was sentenced to a dishonorable discharge and confinement at hard labor for 14 months. That conviction ’ became final on February 25, 1972, and the sentence was ordered executed. As a result, the service of the sentence adjudged by the first court-martial was interrupted. United States v. Bryant, 12 U.S.C.M.A. 133, 30 C.M.R. 133 (1961). On' March' 13, 1972, pursuant to the sentence adjudged by the second court-martial, the appellant Was dishonorably discharged. He completed his term of confinement as to the second sentence on April 26, 1972, and the service of the confinement adjudged by his original court-martial resumed the next day.
As authorized by our mandate in this case, the court-martial convening authority at' Fort Leavénworth directed a rehearing on the charge's .involved in the original court-martial. They were referred to a general, court-martial which convened on November 1, 1972. After arraignment, defense counsel moved to dismiss the charges on the ground that the appellant’s discharge and completion of the confinement adjudged at the second court-martial divested the military of jurisdiction over him. This motion was granted by the military judge. However, on November 30, the court reconvened at the direction of the convening authority. The military judge indicated the convening authority had disagreed with his ruling, and, acceding to the convening authority’s instructions, he reversed his earlier ruling on the motion to dismiss.1 A tentative trial date was set for January 16, 1973, when the defense counsel expressed a desire to petition this Court for an injunction against further court-martial proceedings. Pursuant to a request by the defense counsel, the appellant was released from confinement on December 6,1972, and was permitted to return .to his home.
On February 1,1973, the appellant filed a petition for extraordinary relief in this Court alleging a lack of jurisdiction. The jurisdictional question was resolved against the appellant, and an earlier order staying the court-martial proceedings was vacated. Peebles v. Froehlke, 22 U.S.C.M.A. 266, 46 C.M.R. 266 (1973). The court-martial reconvened on August 1, 1973. The appellant was not present. Defense counsel objected to the continuation of the proceedings in the appellant’s absence, but the judge ruled that the appellant was voluntarily absent after arraignment, and he could, therefore, be tried in absentia. Appellant was convicted of unpremeditated murder (inherently dangerous act) and consummated assault with a dangerous weapon (five specifications),2 and sentenced to confinement at hard labor for 10 years. The findings and sentence were approved by the convening authority and affirmed by the Court of Military Review.3 United States v. Peebles, [179]*1792 M.J. 404 (A.C.M.R.1975). We granted review to determine whether the appellant was properly tried in absentia.4
Paragraph 11c, Manual for Courts-Martial, United States, 1969 (Rev.), provides:
Effect of voluntary absence from trial. The accused’s voluntary and unauthorized absence after the trial has commenced in his presence and he has been arraigned does not terminate the jurisdiction of the court, which may proceed with the trial to findings and sentence notwithstanding his absence. In such a case the accused, by his wrongful act, forfeits his right of confrontation.
This Court held in United States v. Houghtaling, 2 U.S.C.M.A. 230, 8 C.M.R. 30 (1953), that where an accused was arraigned and subsequently escaped from confinement, a trial in his absence was permissible.5 Indeed, Houghtaling is consistent with Fed.R. Crim.P. 43 which permits trial of an accused when he voluntarily absents himself therefrom. Accord, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). However, as the Court noted in United States v. Cook, 20 U.S.C.M.A. 504, 43 C.M.R. 344 (1971), the mere absence of an accused did not warrant a finding of voluntariness where there was some evidence that the accused was suffering from a mental illness which could have caused his absence. Thus, Cook stands for the proposition that absence alone warrants a finding of voluntariness only where there are no circumstances indicating the contrary.
Turning to the facts of the present case, we note that the trial proceedings adjourned on November 30, 1972, but did not reconvene until August 1, 1973. During this period, the appellant was released from confinement and thereafter was not under the control of the military. The appellant submits the requirement in paragraph 11c, MCM, that his absence be unauthorized can never be satisfied under such circumstances, i. e., the appellant must be absent without authority within the meaning of Articles 85 or 86, UCMJ, 10 U.S.C. §§ 885 or 886. I do not read this requirement of paragraph 11c in the manner urged by the appellant. Rather, as that term is concerned with an accused’s obligation to be present for his trial, I perceive “unauthorized” to merely mean that no one in authority has excused him from the proceedings.
Nevertheless, appellant’s absence must be voluntary as well as unauthorized. The record reflects that during the delay occasioned by the appellant’s petition for extraordinary relief, the appellant was released from confinement and allowed to return to his home without any form of restraint. He was aware, however, of his obligation to return for this trial if his petition for extraordinary relief was resolved against him.
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Opinion
COOK, Judge:
This case has a long history. The appellant was originally convicted by a general court-martial on March 28, 1970, of unpremeditated murder, larceny, and consummated assault with a dangerous weapon (five specifications) in violation of Articles 118, 121, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 918, 921, and 928, respectively. On July 13, 1971, the United [178]*178States Army Court of Military Review set aside the action of the convening authority and returned the case for a new review and action. .The findings and sentence were approved by the second convening authority, and on February 22, 1972, the Court of Military Review affirmed his action. United States v. Peebles, 45 C.M.R. 406 (A.C.M. R.1972). However, this Court, in an opinion dated June 22, 1972, reversed that decision on the basis the appellant’s pretrial statement was improperly admitted into evidence and authorized a rehearing. United States v. Peebles, 21 U.S.C.M.A. 466, 45 C.M.R. 240 (1972). Our mandate issued on July 5, 1972.
While this case was in the course of review, the áppellant was convicted by another general court-martial on May- 20,1971, of escape from Confinement and was sentenced to a dishonorable discharge and confinement at hard labor for 14 months. That conviction ’ became final on February 25, 1972, and the sentence was ordered executed. As a result, the service of the sentence adjudged by the first court-martial was interrupted. United States v. Bryant, 12 U.S.C.M.A. 133, 30 C.M.R. 133 (1961). On' March' 13, 1972, pursuant to the sentence adjudged by the second court-martial, the appellant Was dishonorably discharged. He completed his term of confinement as to the second sentence on April 26, 1972, and the service of the confinement adjudged by his original court-martial resumed the next day.
As authorized by our mandate in this case, the court-martial convening authority at' Fort Leavénworth directed a rehearing on the charge's .involved in the original court-martial. They were referred to a general, court-martial which convened on November 1, 1972. After arraignment, defense counsel moved to dismiss the charges on the ground that the appellant’s discharge and completion of the confinement adjudged at the second court-martial divested the military of jurisdiction over him. This motion was granted by the military judge. However, on November 30, the court reconvened at the direction of the convening authority. The military judge indicated the convening authority had disagreed with his ruling, and, acceding to the convening authority’s instructions, he reversed his earlier ruling on the motion to dismiss.1 A tentative trial date was set for January 16, 1973, when the defense counsel expressed a desire to petition this Court for an injunction against further court-martial proceedings. Pursuant to a request by the defense counsel, the appellant was released from confinement on December 6,1972, and was permitted to return .to his home.
On February 1,1973, the appellant filed a petition for extraordinary relief in this Court alleging a lack of jurisdiction. The jurisdictional question was resolved against the appellant, and an earlier order staying the court-martial proceedings was vacated. Peebles v. Froehlke, 22 U.S.C.M.A. 266, 46 C.M.R. 266 (1973). The court-martial reconvened on August 1, 1973. The appellant was not present. Defense counsel objected to the continuation of the proceedings in the appellant’s absence, but the judge ruled that the appellant was voluntarily absent after arraignment, and he could, therefore, be tried in absentia. Appellant was convicted of unpremeditated murder (inherently dangerous act) and consummated assault with a dangerous weapon (five specifications),2 and sentenced to confinement at hard labor for 10 years. The findings and sentence were approved by the convening authority and affirmed by the Court of Military Review.3 United States v. Peebles, [179]*1792 M.J. 404 (A.C.M.R.1975). We granted review to determine whether the appellant was properly tried in absentia.4
Paragraph 11c, Manual for Courts-Martial, United States, 1969 (Rev.), provides:
Effect of voluntary absence from trial. The accused’s voluntary and unauthorized absence after the trial has commenced in his presence and he has been arraigned does not terminate the jurisdiction of the court, which may proceed with the trial to findings and sentence notwithstanding his absence. In such a case the accused, by his wrongful act, forfeits his right of confrontation.
This Court held in United States v. Houghtaling, 2 U.S.C.M.A. 230, 8 C.M.R. 30 (1953), that where an accused was arraigned and subsequently escaped from confinement, a trial in his absence was permissible.5 Indeed, Houghtaling is consistent with Fed.R. Crim.P. 43 which permits trial of an accused when he voluntarily absents himself therefrom. Accord, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). However, as the Court noted in United States v. Cook, 20 U.S.C.M.A. 504, 43 C.M.R. 344 (1971), the mere absence of an accused did not warrant a finding of voluntariness where there was some evidence that the accused was suffering from a mental illness which could have caused his absence. Thus, Cook stands for the proposition that absence alone warrants a finding of voluntariness only where there are no circumstances indicating the contrary.
Turning to the facts of the present case, we note that the trial proceedings adjourned on November 30, 1972, but did not reconvene until August 1, 1973. During this period, the appellant was released from confinement and thereafter was not under the control of the military. The appellant submits the requirement in paragraph 11c, MCM, that his absence be unauthorized can never be satisfied under such circumstances, i. e., the appellant must be absent without authority within the meaning of Articles 85 or 86, UCMJ, 10 U.S.C. §§ 885 or 886. I do not read this requirement of paragraph 11c in the manner urged by the appellant. Rather, as that term is concerned with an accused’s obligation to be present for his trial, I perceive “unauthorized” to merely mean that no one in authority has excused him from the proceedings.
Nevertheless, appellant’s absence must be voluntary as well as unauthorized. The record reflects that during the delay occasioned by the appellant’s petition for extraordinary relief, the appellant was released from confinement and allowed to return to his home without any form of restraint. He was aware, however, of his obligation to return for this trial if his petition for extraordinary relief was resolved against him. During this period, the trial defense counsel requested that all communication with the appellant be made through him. However, the defense counsel lost contact with his client. The trial counsel asserted during the trial that he contacted the police authorities in appellant’s hometown,6 the appellant’s last known employer, and attempted to locate the appellant’s relatives and friends in an effort to notify the appellant of the date the case was scheduled for trial. The trial counsel was unsuccessful in these efforts. Additionally, the trial defense [180]*180counsel sent a letter informing the appellant of the trial date to an address (post office box) provided by appellant, but he did not know if the appellant received the letter.
It is apparent from the aforementioned information that the record does not reflect the appellant was actually notified of the trial date. Although the defense counsel sent a letter to a specified address, this was during a period when he had lost contact with his client, and the trial counsel acknowledged that his own efforts were unsuccessful, too. Furthermore, the primary responsibility for notifying the parties concerned of the trial date rests with the trial counsel. Paragraph 44f(2), MCM. While the defense counsel requested that communications with the appellant be made through him, notice to the defense counsel is not sufficient where the appellant has not specifically granted his counsel the authority to waive his right to be present. See United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969); Evans v. United States, 284 F.2d 393 (6th Cir. 1960). Cf. United States v. Larneard, 3 M.J. 76 (C.M.A.1977). Furthermore, the appellant was never instructed by anyone involved in the proceedings to report any change in his residence or to keep someone advised of his location. While such a requirement may have been desirable, no obligation of this nature was imposed upon the appellant. Thus, there was no misconduct on his part in failing to notify the authorities of any change in his address. The requirement that the appellant’s absence be voluntary necessarily requires an informed and intentional choice in the matter, which, in turn, requires the appellant’s knowledge of the trial date. Appellant’s knowledge of such date was not adequately demonstrated on the record. As the Court noted in United States v. Staten, 21 U.S.C.M.A. 493, 495-96, 45 C.M.R. 267, 270-71 (1972), the right of an accused “to be present during trial is fundamental” and I am unwilling to invoke a waiver of such right under the circumstances.
The parties have informed us that the appellant was returned to military control on April 15, 1974, and continuously confined until August 12, 1975, when he was released on parole. In view of the protracted nature of the proceedings, the appellant’s discharge from the military, and the appellant’s service of a substantial portion of the confinement, we deem it appropriate to terminate the proceedings. See United States v. King, 2 M.J. 4 (1976); United States v. Robbins, 18 U.S.C.M.A. 86, 39 C.M.R. 86 (1969); United States v. Sheeks, 16 U.S.C.M.A. 430, 37 C.M.R. 50 (1966).
The decision of the United States Army Court of Military Review is reversed, and the charges and their specifications are ordered dismissed.
Chief Judge FLETCHER concurs in the result.