(concurring):
In the case of the two “general articles,” it is probably incorrect, technically, to speak in terms of one being “lesser-included” within the other. Ordinarily, an offense is lesser-included when all of its elements fit within the elements of another offense. This “elements test,” however, is only a “rule of statutory construction.” Albemaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1142-43, 67 L.Ed.2d 275 (1981). When there is a “clear indication of contrary legislative intent,” that intent governs. Id.
Here, the legislative intent appears on the face of Article 134, Uniform Code of Military Justice, 10 USC § 934, which expressly states:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, [and] all conduct of a nature to bring discredit upon the armed forces ... shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.
(Emphasis added.) “Specifically mentioned” in the chapter, of course, is Article 133, UCMJ, 10 USC § 933—conduct unbecoming an officer and gentleman.
Accordingly, Article 134 has always been understood as a residual provision rather than a redundant one. See para. 74(e), Manual for Courts-Martial, United States, 1921; para. 183c, Manual for Courts-Martial, U.S. Air Force, 1949. I agree, therefore, that the specifically mentioned offense should be affirmed and the redundant one dismissed.