(concurring in results) :
I concur in the results.
While I realize that we should, only under most unusual circumstances, restrict the provisions of the Manual as narrowly as I do, I believe this to be one of those unusual situations. When the literal import of words leads to absurd results then it is a fair assump*507tion they were employed in some other sense.
In this instance if the terms of the footnote are interpreted literally any offense listed in the Table of Maximum Punishments, Manual for Courts-Martial, United States, 1951, involving a failure to obey an order, must be punished as provided for under the specifically listed offense. If, however, there is no punishment listed for that substantive offense, then the crime may be punished as provided for under Article 92. The difficulty with this interpretation is that so few substantive offenses, which involve failure to obey, are listed in the schedule, while so many less important delicts can be made the basis of a charge of failure to obey, that absurd and undesirable results are encountered.
By way of illustration, in the particular instance the accused was ordered to report to a ration breakdown, point for duty. He failed to obey the order and unquestionably he violated Article 86(1), supra, by failing to go to his appointed place of duty at the time prescribed. Literally applying the footnote would limit his punishment to one month and forfeiture of two-thirds pay for not to exceed that period. Again using the same literal application, if we compare punishment for that offense to one where an enlisted driver is charged with failing to obey the order of a motor sergeant to turn off the motor, we find that conviction of the latter offense would permit imposing a sentence of bad-conduct discharge, six months’ confinement and total forfeitures of all pay and allowances. I would, therefore, disregard that construction because I find no rational basis for such disparity in sentences.
The Court has attempted to escape the undesirable consequences found in a literal construction by interpreting the act to bring about what at first glance might appear to be a more desirable result. However, if the services attempted to apply the rule set forth in the Court’s opinion, which I believe to be impracticable, just as many undesirable consequences would follow. As I understand the rule pronounced in the majority opinion, it is that if the gravamen of the offense alleged and established is disobedience of a direct order of a superior, then the footnote does not apply. In attempting to apply this, I see absurdities in permitting a court to sentence one accused to six months, bad-conduct discharge and forfeiture of all pay and allowances for the failure to obey a direct oral order given by a noncommissioned officer and yet be limited to sentencing another accused to one month confinement with a forfeiture of two-thirds of «. month’s pay if he fails to obey a written order signed by an officer and personally delivered to him." Surely there is disrespect for authority in both instances and the disparity in the sentences seems illegal and unjust.
Examples could be multiplied, but it would be the work of supererogation. Regardless of how the footnote is applied, unless it is limited to cases which are prosecuted under Article 92, supra, to increase the punishment, no sensible meaning can be given to it. Accordingly, I would adopt, the rule found in Paragraph 4508, Sutherland Statutory Construction, 3rd ed. The author there explained the principle in the following language:
“It is apparent from the nature of the interpretative process that cases will arise where none of the rules of interpretation will disclose with precision the legislative intent which motivated the legislative action. When this occurs courts frequently have refused to apply the statute on the ground that its terms were too indefinite and uncertain. In many instances the courts have gone farther and asserted the statute was therefore void for uncertainty. . . .
“In negligence cases wheré the court is required to determine the effect of due care it will instruct the jury or decide itself, as the case may be, the conduct expected of a reasonable man under the circumstances and by that standard judge the defendant’s act. By analogy, in those cases where all efforts to determine *508the actual legislative intent have failed, a court might reasonably apply a ‘reasonable legislature’. standard. That is, it might consider the evils which existed and which the legislature was endeavoring to correct and on the basis of that and the language available from the statute arrive at a judgment as to what a legislature probably would have intended. At the risk of being wrong the court will at least be able to decide the merits of the case and if its decision was wrong and did not reflect the legislative intent, the legislature itself could correct the error at its next session.”
I am reasonably certain that the codifiers of the Manual intended to use the footnote for the purpose of preventing convening authorities from increasing the punishment for commission of relatively minor offenses by the simple expedient of charging them as failure to obey an order. This is the evil that existed, and is the one, I believe, the codifiers attempted to correct. For this reason I would not hold the footnote void, as it has a useful purpose if limited in scope. I would, therefore, adopt a construction which carries out what I believe to be the intent of the codifiers and only apply the footnote in those cases where there was a fair probability that the accused was guilty of a listed offense, but was charged with failure to obey an order to permit imposition of a greater sentence. This case does not appear to fall in that category, and so I would answer the question in the negative.