(dissenting):
Shearer, who was a passenger in the car which had been involved in the accident, had no duty to report the accident or to prevent Fireman Atwood from leaving the scene.. After all, Shearer was not superior in rank, and he did not play any part in causing the accident.** Of course, if appellant encouraged Atwood to leave the scene or drove the car away for him, he would be liable as a principal on a theory of aiding and abetting. See Art. 77, Uniform Code of Military Justice, 10 USC § 877. However, my reading of the colloquy between appellant and the military judge convinces me that no such encouragement or assistance was provided or at best that the record is too confused on this point to permit acceptance of the plea. Certainly, nothing I have found in the providence inquiry constitutes a clear admission that appellant persuaded or urged Atwood to leave the scene. Merely riding with him after the accident — or driving the car at a later time — does not suffice.
The majority opinion suggests that appellant’s plea of guilty may have “induced” the prosecution not to present “its entire case concerning appellant’s duty to report accidents in this foreign country.” 44 MJ at 335. If this statement is meant to suggest that the language of the specification would permit appellant’s conviction for failure to comply with a duty imposed by Japanese law, I must disagree vehemently. The Uniform Code does not incorporate foreign law. Likewise, I cannot sustain the conviction by speculating that some American military regulation may have supplemented Article 134, UCMJ, 10 USC § 934, by imposing a duty to report accidents in Japan. Finally, to me it seems incongruous to sustain a conviction of a passenger who understood no Japanese on the premise that he should have identified Atwood as the driver to a crowd of Japanese who spoke no English. In short, appellant’s testimony during the providence inquiry was far more consistent with his innocence than with his guilt. Therefore, I respectfully dissent.
According to appellant’s account, he was asleep at the time of the accident.