(concurring):
I concur. My outright concurrence in this case is based on an understanding that the principal opinion does not depart from the ratio of this Court’s decision in United States v. Buekmiller, cited by the majority. I am sure that it does not do so. Although the spokesman for the Court refers to the purpose of Footnote 5 as being “to prevent the imposition of a more severe punish-, ment” for an offense, he indicates immediately thereafter that he conceives “the gravamen of the offense” to be the touchstone in the problem. This is what the Court held in Buekmiller, and I am sure it is what we are holding here. The question in this sort of case, as I see it, is what violation is, in fact, alleged. Cf. United States v. Deller, 3 USCMA 409, 12 CMR 165. Is the .accused here charged merely with being in improper uniform, or is it alleged that he wore civilian clothes, in violation of a general order? I think it is the latter — and so does the Chief Judge.
I am not too greatly concerned that in the Buekmiller case we referred in passing to United States v. Carpenter, 11 BR-JC 369 — a case similar to the present one — as reflecting a proper application of Footnote 5, whereas here we appear to reach a contrary conclusion. The Carpenter case was decided in 1950. Perhaps the gravamen of an offense may change with circumstances. Perhaps the two cases may be distinguished. Or perhaps the majority in Buekmiller simply chose in dicta a bad illustration. However, I am sure that, in view of the use we made of the Carpenter case in Buekmiller, the board of review is to be criticized in no way for its decision here.