(concurring in part and in the result):
I agree with the majority’s resolution of the command-influence issue. It is easy to see why it was not raised at trial: it was patently without merit.
In my view this case is not about protection of “fighting words” under the First Amendment or civilian supremacy over the military. Accordingly, I see no need to agree or disagree with those parts of the majority opinion.
. Similarly, I see no need to address the importance of the Gulf War, the threat of nuclear, chemical, and biological warfare, or the adverse living conditions endured by those who served. There is no issue of “important service” or “hazardous duty” before us.
I reach the same result as the majority on Issue I, but by a different route. I agree with the majority that the statute in question is not overly broad and that it does not violate appellant’s First Amendment rights. What the majority fails to address, however, is appellant’s argument that United States v. Pete, 39 MJ 521 (ACMR 1994), should control this case. Pete stands for the proposition that the statute prohibits only “union related” activities. Appellant argues, therefore, that the statute does not apply to the informal action taken by appellant and his comrades.
Both Pete and this case were decided by the same panel of the court below, but with different results. Both Pete and this case involved “the same episode at Fort Hood with similar charges” against both soldiers. 41 MJ at 508. In Pete the court below clearly framed the pivotal issue in both eases: “[Wjhether the appellant’s activities were the type of ‘concerted action involving members of the armed forces’ that the statute proscribes.” 39 MJ at 525. The court below construed 10 USC § 976(c) “as proscribing disruptive concerted activity in the military that is indubitably bound with union organizational, representational, or bargaining objectives.” Id. at 527. The court below found that the Government failed to prove beyond a reasonable doubt that Sergeant Pete’s actions violated the statute.
In appellant’s case the court below found that appellant and other soldiers “banded together in an informal group that attempted to organize and implement a seven-day-long-‘strike’ within the military • context for the purpose of forcing a change in their training conditions.” The court concluded that appellant’s conduct violated the statute. 41 MJ at 509. The court distinguished the Pete decision, noting that it “should not be misconstrued to indicate that participation in a ‘military labor organization’ is a prerequisite for a violation of Section 976(c)(3)(C).” 41 MJ at 508 n. 2. The finding of a violation of the statute in this case is difficult to reconcile with the finding by the very same panel of the court below that Sergeant Pete, a participating member of the same “informal group,” did not violate the statute.
At first blush, the literal language of the statute would appear to undermine appellant’s argument that his conduct was not proscribed by the statute. The statute makes it—
unlawful for any person ... to organize, or attempt to organize, or participate in, any strike, picketing, march, demonstration, or other similar form of concerted action involving members of the armed forces that is directed against the Government of the United States and that is intended to induce any civilian officer or employee, or any member of the armed forces, to ... make any change with respect to the terms or conditions of service in the armed forces of individual members of the armed forces____
10 USC § 976(c).
The uncertainty arises not from the literal language of the statute, but from the legisla*401tive history reflecting congressional intent. The legislation was enacted in response to efforts by the American Federation of Government Employees (AFGE) to add military personnel to their ranks. House Committee on Armed Services, H.R.Rep. No. 894, 95th Cong., 2d Sess. 6-7 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News (hereafter USCCAN) 7575, 7578. The purpose of the legislation was “to promote the readiness of the Armed Forces by prohibiting the membership of military personnel in military labor organizations, prohibiting the enrollment of military personnel in such organizations and prohibiting the recognition of such unions by members of the Armed Forces or by civilian officers and employees of the Government.” House Report, supra at 5, reprinted in 1978 USCCAN at 7577.
The statute prohibits organizational and collective bargaining activity by “any person.” Appellant would appear to be included in the phrase, “any person.” However, in the section-by-section analysis of the House Report, “any person” is followed by the parenthetical “(i.e. a labor organization or association as well as its representatives),” House Report, supra at 9, reprinted in 1978 USCCAN at 7581, thus limiting the term “any person” to persons associated with a labor organization or association. Since there was no evidence that appellant was associated with any labor organization, and no evidence that he was trying to form any kind of organization, he would not appear to be included in the term “any person” as that term was intended by Congress. Since criminal statutes must be narrowly construed, I would give appellant the benefit of the ambiguity and hold that appellant’s acts did not violate the statute because he was not acting as a representative of any labor organization or association.
Nevertheless, I believe that appellant’s conviction of unlawful concerted action can be upheld. Even if appellant does not qualify as “any person” within the meaning of the statute, his conduct was prejudicial to good order and discipline, an included offense under Article 134, Uniform Code of Military Justice, 10 USC § 934. Accordingly, I join the majority in affirming appellant’s eonviction of violating Article 134, but I would affirm on the basis of a Clause 1 violation instead of a Clause 3 violation. See para. 60c, Part IV, Manual for Courts-Martial, United States (1995 ed.). I decline to join the majority’s holding that appellant’s conduct violated 10 USC § 976(c).
I am satisfied that appellant was not prejudiced on sentencing by the mischaracterization of his conduct as a violation of 10 USC § 976(c). Accordingly, I join the majority in affirming appellant’s sentence.