(dissenting):
I write separately to address the majority opinion as it relates to the important multiplicity issue raised therein, which we are seeing with great frequency. I believe the majority’s analysis of this important issue is flawed.
Appellant unambiguously admitted having wrongfully and knowingly used marijuana and methamphetamine simultaneously, on a single occasion, when he smoked a “joint” into which the two substances were rolled. Record at 14-16. Despite the fact that he used these substances at the same time in one cigarette, the appellant was charged with, convicted of, and punished for, inter alia, two separate specifications of having violated Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (1994); one alleging wrongful use of marijuana, the other alleging wrongful use of methamphetamine (both Schedule I controlled substances). I have a problem accepting the fundamental fairness of this result.
Imagine this scenario. An active duty military member enters the barracks room of another military member and steals ten separate items, all taken at the same time. Should we charge and convict that individual of ten separate larcenies? What if that same thief elects to steal a single suitcase from the barracks room that happens to contain ten separate items belonging to ten different people? Again, should we charge and convict this thief of ten separate larcenies? Of course not! Why? Because common sense, *515logic, and fundamental fairness tell us that our thief, as reprehensible as he may be, has actually committed just one larceny in each of these scenarios, and should only be charged with, convicted of, and punished for one larceny.1 The same logic and rationale should be applied to the ease before us today, and appellant should now stand convicted only of having committed one offense, contained in a single specification consolidating his one, simultaneous use of marijuana and methamphetamine in violation of Article 112a, UCMJ.
The precise question posed to us in this case is whether this single act of ingestion constitutes one offense of wrongfully using two controlled substances or two offenses of wrongfully using one controlled substance each. See United States v. Montgomery, 30 M.J. 1118, 1119 (N.M.C.M.R.1989). I believe that the two separate specifications alleging wrongful use of different controlled substances used simultaneously are multiplicious and constitute an unreasonable multiplication of charges against appellant.
Multiplicity
“A fair result remains not only the objective, but indeed the justification of the military justice system.” United States v. Foster, 40 M.J. 140, 144 n. 4 (C.M.A.1994). We strive in the military to avoid multiplicity because it violates constitutional and statutory prohibitions against double jeopardy and potentially infringes upon an accused’s due process rights.2 The double jeopardy clause of the Fifth Amendment to the Constitution prohibits multiple punishments for the same offense at the same trial. Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Teters, 37 M.J. 370, 373 (C.M.A.1993). Generally, the test established in the military for resolving multiplicity issues is the “elements test” announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and adopted in Teters. The “elements test” focuses consideration on the statutory elements of the crimes involved:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two different offenses or only one is whether each provision requires proof of an additional fact which the other does not.
Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (emphasis added).
Under this “strict elements test,” the double jeopardy clause of the Fifth Amendment of the Constitution is violated if, absent express congressional authority, multiple convictions and punishments are imposed “under different statutes for the same act or course of conduct.” Teters, 37 M.J. at 373; Ball v. United States, 470 U.S. at 861 (emphasis added). Thus, the “elements test” is only utilized to determine multiplicity in regard to charges alleged under separate statutory provisions. If each of the two statutory provisions involved requires proof of an element distinct from the other, we are allowed to presume that Congress intended to authorize separate punishments. Albernaz v. United States, 450 U.S. 333, 341-42, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).
This case, of course, does not involve “two distinct statutory provisions.” It involves just one, Article 112a, UCMJ. The “elements test” of Blockburger and Teters does not apply when you are examining multiple specifications charged under the same statutory provision, and I cannot support the majority’s attempt to somehow resolve this important issue under an “elements” analysis. *516See United States v. Inthavong, 48 M.J. 628, 630 (Army Ct.Crim.App.l998)(“R[ocfc&w.rper’s focus on different statutes provides no assistance in cases [that involve] the same statutory provision and thus the same statutory elements.”). Additionally, to say that “separate elements” exist in this case because different controlled substances were used ignores the statutory elements of the offense.3 The statute prohibits “use” of a controlled substance, and in this case we have only one use, despite the number of substances ultimately involved.4
For the situation this ease presents, we must ignore the “elements test” and instead apply standard rules of statutory construction and the Supreme Court’s “rule of lenity” announced in Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955).5
Since time immemorial, basic rules of statutory construction have mandated that penal statutes be strictly construed against the Government. United States v. Ferguson, 40 M.J. 823, 830 (N.M.C.M.R.1994). In other words, where legislative intent is unclear and ambiguous, the accused must receive the benefit of the doubt.6 The rule of lenity guides us in determining issues of congressional intent to allow multiple convictions and punishments for a single offense charged in multiple specifications under one statute. It is a common sense and practical methodology for approaching issues of statutory construction such as that which we face in this case. The essence of the rule is that a federal criminal statute will not be interpreted in such a manner “as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Ladner v. United States, 358 U.S. 169, 178-79, 79 S.Ct. 209. Justice Frankfurter stated the rule as follows:
When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this is not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.... [I]f Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.
Bell v. United States, 349 U.S. at 82-84, 75 S.Ct. 620.
While Congress clearly has the power to create, define and pyramid punishment, the rule of lenity declines to find such intent when the rules of statutory construction do not warrant such a finding. Prince v. United States, 352 U.S. 322, 329, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). Also, when a single transaction is charged in multiple specifications as a violation of a single statute, there is a presumption that Congress intended but a single punishment. Gore v. United States, *517357 U.S. 386, 391, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); United States v. DeJesus, 806 F.2d 31, 36 (2d Cir.1986)(citing Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)).
The UCMJ is a penal code subject to the rule of strict construction and the rule of lenity. United States v. Ferguson, 40 M.J. at 830. In interpreting the issue before us concerning Article 112a, UCMJ, we must take the following path: first, we must give all terms used in that statute their ordinary meaning; second, if an ambiguity exists in the statute, we must examine the legislative history to resolve the ambiguity; and, finally, if after applying the first two steps a reasonable doubt still exists as to the statute’s intent, we must apply the rule of lenity and resolve the ambiguity in favor of the appellant. Moskal v. United States, 498 U.S. 103, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990).
Nowhere in the language of Article 112a, UCMJ, is it expressly stated that multiple convictions and punishments are authorized or intended for the simultaneous use of two different controlled substances. See Inthavong, 48 M.J. at 633.7 Also, as has recently been demonstrated, divining such intent from the plain language or legislative history of Article 112a, UCMJ, requires a “guessing game” and represents more an attempt to manufacture legislative intent than to discern it.8 The simple fact of the matter is that Article 112a, UCMJ, and its legislative history are unclear and ambiguous on this issue. See Inthavong, 48 M.J. at 636-37 (Johnston, J., concurring);9 United States v. Montgomery, 30 M.J. at 1120-21. Unfortunately, we are left to guess as to what Congress intended in this regard. Although Congress clearly has the ability to expressly address this issue, they have not done so. Because that is the case, the rule of lenity must be applied and we must resolve the doubt “against turning this single transaction into multiple offenses.” Bell v. United States, 349 U.S. at 84, 75 S.Ct. 620; Ladner v. United States, 358 U.S. at 178, 79 S.Ct. 209.
Unreasonable Multiplication of the Charges
The President, in successive editions of the Manual for Courts-Martial, has established a rule of policy which, in order to promote equity in sentencing, prohibits the unreasonable multiplication of charges against an accused.10 While multiplicity is an issue of law grounded in the constitutional protections against double jeopardy, the prohibition against unreasonable multiplication of charges is a policy pronouncement intended to ensure fundamental fairness in sentencing of military accused. United States v. Erby, 46 M.J. 649, 651 (A.F.Ct.Crim.App.1997), aff'd. in part, modified in part, 49 M.J. 134 (1998). This policy “transcends the double jeopardy prohibitions of the Constitution, and looks instead to an equitable restraint on prosecutorial enthusiasm.” Id.; United *518States v. Joyce, 50 M.J. 567, 569 (N.M.Ct.Crim.App.1999).
R.C.M. 307(c)(4), Discussion, instructs us “[t]hat what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person.” In a nutshell, the policy is a limitation on our discretion in the military to charge separate offenses against an accused, and seeks to prevent prosecutorial “piling on.” See United States v. Oatney, 45 M.J. 185, 190 (1996)(Cox, C.J., dissenting); United States v. Joyce, 50 M.J. at 569.
Although the situation presented in this case is certainly not the most egregious scenario we have seen giving rise to this issue, it nevertheless puts the President’s policy directly to the test. Whether an offense is unreasonably multiplied by one, or by some number larger than that, the effect is equally insidious. See generally United States v. Sturdivant, 13 M.J. 323 (C.M.A.1982). The appellant, as a result of his one-time use of drugs, now stands convicted of two serious offenses vice one,11 and was subjected to twice the punishment that one offense would have authorized.12 While initially charging these two offenses separately for contingencies of proof would be completely legitimate, once the appellant entered pleas of guilty and successfully negotiated the providence inquiry, the facts adduced in this case mandated consolidation of the two specifications into just one charge alleging wrongful use of both drugs on one occasion. Anything less is unreasonable, fundamentally unfair, and violates the spirit of R.C.M. 307.13
In this regard, I stress what I hope is obvious. A trial judge is not a “potted plant” when it comes to ensuring that the President’s policy pronouncement in R.C.M. 307 is complied with. Military judges have the power and the discretion to decide whether “piling on” has occurred and, if so, to fix it. A judge may mandate consolidation of unreasonably multiplied charges, limit the maximum punishment, sever or dismiss certain charges, or treat unreasonably multiplied charges as multiplicious for sentencing.
I am convinced that the appellant’s sentence was reasonable, and not adversely impacted by this multiplication of one offense into two. I dissent on the basis of our superior Court’s recent holding in United States v. Savage, 50 M.J. 244 (1999), recognizing that an unauthorized conviction constitutes unauthorized punishment in and of itself. I would order consolidation of Specifications 1 and 2 under the Additional Charge.
. This example is not original, it is taken directly from Part IV of the Manual For Courts-Martial, United States (1998 ed.). In discussing "multiple article larceny,” MCM, Part IV, H 46c(l)(h)(ii) states: "When a larceny of several articles is committed at substantially the same time and place, it is a single larceny even though the articles belong to different persons. Thus, if a thief steals a suitcase containing the property of several persons or goes into a room and takes property belonging to various persons, there is but one larceny, which should be alleged in but one specification.”
. For an excellent overview of the legal and policy concerns underlying multiplicity jurisprudence, see William T. Barto, Alexander the Great, The Gordian Knot, and the Problems of Multiplicity in the Military Justice System, 152 Mil.L.Rev. 1 (Spring 1996).
. The elements of use of a controlled substance in violation of Article 112a, UCMJ, are as follows:
(1) That the accused used a controlled substance; and
(2) That the use by the accused was wrongful. MCM, Part IV, V 37b(2).
. The majority’s approach relies heavily on the fact that the appellant knowingly elected to combine the two separate controlled substances involved here. What of the situation where an accused knowingly smokes what he believes to be a marijuana cigarette at a party, but later finds out that the cigarette contained one or more additional controlled substances he had no knowledge of? How many "uses” is he guilty of? And consider the underage servicemember who knowingly consumes a single, infamous "Long Island Iced Tea” containing 7 or 8 varieties of alcohol mixed together. Certainly, he consumes this potent beverage for its "enhanced” impact upon sobriety, but should we charge him with 7 or 8 specifications of underage drinking because of the number of different alcoholic beverages involved?
. See Teters, 37 M.J. at 377 n. 6 ("When there is a conflict between application of the Blockburger rule and some other rule of construction for determining implied legislative intent, the rule of lenity applies”)(citing Walen v. United States, 445 U.S. 684, 694, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)).
. I would posit further that, when the interpretation constitutes a "close call” as to what a legislature intended, this rule would require that the "tie go to the runner.”
. Despite this fact, the majority of the Army Court of Criminal Appeals ultimately concluded that the legislative history of Article 112a "strongly supports the conclusion that multiple convictions are intended and authorized." Id. In his concurring opinion (on separate grounds), Judge Johnston strongly disagreed.
. Compare the majority and concurring opinions in Inthavong, 48 M.J. at 628. I am unpersuaded by the majority opinion of the Army Court of Criminal Appeals when it attempts to bootstrap Congressional intent vis-á-vis Article 112a, UCMJ, from the Comprehensive Drug Abuse Prevention and Control Act of 1970 (codified at 21 U.S.C. §§ 801-904), and subsequent federal case law interpreting that Act. Inthavong, 48 M.J. at 631-33. The majority of the Army court decided that the simultaneous distribution of two separate drugs (LSD and marijuana) could be legally charged as separate specifications under Article 112a, UCMJ. I believe this opinion is unsupported in the plain language or legislative history of Article 112a, UCMJ.
. In his concurring opinion in Inthavong, Judge Johnston concludes that Article 112a, UCMJ, "is unlike the [Comprehensive Drug Abuse Prevention and Control Act of 1970] in significant ways.” Inthavong, 48 M.J. at 637. When, as occurred in Inthavong, the task of deciphering congressional intent degenerates into a prolonged debate over why Congress employed the words “a substance described in subsection (b)” vice "substances described in subsection (b),” the rule of lenity "alarm” should be automatically activated.
. For an excellent discussion of this subject in the context of multiplicity jurisprudence, see Michael J. Breslin and LeEllen Coacher, Multiplicity and Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 A.F. Law. Rev. 99 (1998).
. See United States v. Savage, 50 M.J. 244, 245 (1999)(unauthorized conviction has potential adverse collateral consequences that may not be ignored and constitutes unauthorized punishment in and of itself).
. Obviously, the jurisdictional sentencing limitations on this special court-martial curtailed that potential impact.
. The multiplicity issues in this case are easily resolved by examination of the charge sheet and the record of trial. Accordingly, waiver should not be applied. United States v. Lloyd, 46 M.J. 19 (1997); United States v. Harwood, 46 M.J. 26 (1997); Joyce, 50 M.J. at 568-69.