(dissenting):
In The Caine Mutiny by Herman Wouk, the defense attorney, Lieutenant Greenwald, tells the accused, Lieutenant Maryk, before trial:
I better tell you one more thing. I’d rather be prosecuting you than defending you. I don’t know yet how guilty you are. But you’re either a mutineer or one of the dumbest goofs in the whole Navy. There’s no third possibility.
Id. at 356.
In this ease, the Government has come up with that “third possibility” — a violator of an anti-union law. Such a prosecution must fail, however, because there is no evidence of any union activity or union organizing activity in this case.
The words in the name of the statute at issue here give us our initial guidance:
Membership in military unions, organizing of military unions, and recognition of military unions prohibited.
10 USC § 976. Thus, it is clear that this command statute is directed against anti-union activity. In fact, the clause under which appellant was prosecuted — 10 USC § 976(c)(3) — was explained in this light in the “Section-by-Section Analysis” part of House Report No. 894, 95th Cong., 2d Sess., on the basic legislation of the statute (Pub.L. No. 95-610):
Subsection (c) — Prohibited union activities.
This subsection describes the activities which are unlawful for any person (i.e. a *402labor organization or association as well as its representatives), who is engaged in organizing or collective bargaining activity.
Subsection (c)(3) prohibits concerted labor union activities which are intended to induce a members of the Armed Forces ... to (A) negotiate or bargain concerning the terms or conditions of military service[.]
1978 U.S.Code Cong. & Admin.News at 7581-82 (emphasis added).
The record in this case shows .no union activity whatsoever. No dues collecting, union organizing, etc. All we have is a group of griping national guard soldiers called to active duty in a hot, dusty, Texas Army base for some hard training. This group obviously did not like the hard soldiering and felt they were being treated unfairly and harshly. What they wanted to do was to leave the post, go to their home community, expose the harsh training to what they hoped would be a sympathetic media, and then return to duty. This was a dumb idea and an ill-conceived round-trip bus excursion to trouble. It was wrong. In a court of law, a clear-headed prosecution team may well have proved that this was mutiny by refusing to obey orders or perform duties or any of the lesser-included offenses under Article 94, Uniform Code of Military Justice, 10 USC § 894.
Additionally, appellant could not have known that his action of lining up bus transportation for his Mends would be viewed as the criminal action of an agent of a labor union. There was no union to be an agent for. Thus, the statute under which appellant was prosecuted is not applicable in the circumstances of this case. Even if the majority, by assuming facts (i.e., existence of a labor union) not in evidence, coukj’iqsply this statute to this case, application of 10 USC § 976 would be unconstitutionally void for vagueness.
If we were to allow such prosecutions under this statute, who knows how far such a statute could be stretched. Could three soldiers who decide to go off base without a pass for a beer with a reporter to discuss the evil things done by their harsh first sergeant likewise be prosecuted? Clearly, the common sense approach to handle the discipline of appellant would be to use the age old mutiny statute and its list of lesser-included offenses.
Moreover, on leadership grounds but not on legal grounds, I question the command decision to give Article 15, UCMJ, 10 USC § 815, punishment to white soldiers for leaving their post and going home, but giving federal criminal convictions to black soldiers who tried to do the same thing at the same post during the same time period. Let us use common sense and fairness.
For the above legal reasons, I would reverse the decision below and remand it for a possible rehearing under the appropriate statutory provisions.**
The various opinions of the judges of this Court indicate that there are not three votes for upholding the lower appellate court’s decision that the military anti-union statute (10 USC § 976) was violated in this case.