(dissenting):
I cannot agree with the result reached by my brothers — particularly m view of the circumstance that, according to them, an accused person may properly receive as much as three years’ confinement at hard labor for communicating a threat, whereas in most instances this quantum of punishment is substantially in excess of that which could lawfully be imposed on him for carrying the identical threat into execution.
II
The Manual for Courts-Martial, U. S. Air Forces, 1949, paragraph 177, contains a discussion of Article of War 99, the precursor of Article 117, Uniform Code of Military Justice, 50 USC § 711. That treatment refers to “Reproachful, provoking or threatening words or gestures of a nature to induce breaches of the peace.” (Emphasis supplied.) Thus in some sense at least, the communication of threats was assimilated to the use of language tending to produce public disorders. The maximum confinement imposable for a violation of Article of War 99 was three months. Manual, supra, Table of Maximum Punishments, paragraph 117 c, page 137.
No offense of communicating a threat is found in the 1949 Manual’s Table of Maximum Punishments under the heading of Article of War 96, the forerunner of the Uniform Code’s Article 134, 50 USC § 728. However, threatening to strike a sentinel carried four months’ confinement. Under Article of War 68, threatening a warrant or non-commissioned officer engaged in quelling a disorder permitted six months’ confinement; and the punishment for threatening personnel of the same grades when in the execution of their official duties ran to the same figure. In the Forms for Charges and Specifications Appendix of the 1949 Manual I find under Article of War 96 no specification skeleton which seems to involve threats, other than those directed toward a sentinel.
The legislative history of the Uniform Code offers little of value for the present purpose. Article 117 is shown as the descendant of Article of War 90. Hearings before the House Committee *460on Armed Services, 81st Congress, 1st Session, on H. R. 2498, page 1231. However, the chairman of the Forrestal Committee, Professor E. M. Morgan, Jr., appeared to he unenthusiastic over the inclusion of Article 117, but explained that it might assist in reducing “horseplay.” Hearings before the Senate Committee on Armed Services, 81st Congress, 1st session, on S. 857 and H. R. 4080, page 50. The House Hearings do, however, mention a proposal for the inclusion of Article 9(13), Articles for the Government of the Navy, which penalizes one who “uses provoking or reproachful words or gestures toward any person in the Naval service, or strikes or threatens to strike, or assaults any person.” (Emphasis supplied.) Moreover, Article 8 (3) of the same superseded source provided for the punishment of one “who quarrels with, strikes, or assaults, or uses provoking or reproachful words, gestures, or menaces towards, any person in the Navy.” (Emphasis supplied.)
Working backward to the 1928 and 1917 Manuals adds nothing of significance — save to reveal that these Executive Orders did not purport to recognize the offense of communicating a threat as such. The detailed historical background of Article of War 90 — and thus of Article 117, Uniform Code — is set out by an Air Force board of review in United States v. Carter [S-827], 3 CMR (AF) 801.
Ill
From the foregoing, I must conclude that the present Article 117 has preempted the field of threat communication, with the result that under the doctrine of United States v. Norris, 2 US CMA 236, 8 CMR 36, there is left no area within which Article 134 may operate. This is true both because of the close logical relationship of “threats” to “provoking or reproachful words” — one basis for the proscription of threats is their tendency to produce breaches of the peace — and because the predecessors of Article 117 tended to encompass threats within their ambits. However, were it to be assumed that the last-named Article alone does not embrace the entire threat area, I should say that it — plus the several additional Code provisions with respect to assault, extortion, disorderly conduct, and disrespect — does fully cover that ground.
Whatever doubts may remain will be resolved, I believe, by a comparison of the maximum punishments set up in the 1951 — the current — Manual. According to its terms, the communication of a threat carries three years’ confinement, together with a dishonorable discharge and total forfeitures — just as does extortion. Exactly twelve times as much confinement at hard labor may be imposed under the Manual’s Table for a threat to assault as for the assault itself — and six times as much as for the assault plus a battery. This can be regarded as nothing less than downright ridiculous.
It is true that — within the Code — the President has full power to establish maximum punishments. However, the incongruity of the sentence imposable under the Manual pursuant to a finding of guilty here certainly suggests that this “crime” of communicating a threat simply does not fit into the framework of law established by Congress. This circumstance is not to be ignored in determining whether the national legislature intended to cover entirely the communication of threats under Articles other than 134. Moreover, the Government labors under a substantial burden when it seeks to justify an extremely heavy penalty assessable — allegedly and solely — under the language of the Manual and never before recognized in military law.
The majority of the Court indicates that the severe penalty for communicating a threat is essential for the reason that military law offers no procedure for requiring a peace bond — like that available in civilian courts. On the other side of the shield it may be said, however, that a commanding officer may lawfully restrict to a reasonably prescribed area any military person who has threatened another — and, on the victim’s request, he may issue an order to the aggressor to remain apart from the former, save as demanded by military duties. In any event, if an interstice exists, it should — I believe — be left to Congress to stop it.
*461While I do not believe that communicating a threat constitutes an offense, as such, I am sure that threatening an air policeman in the execution of his office does amount to criminal conduct. The protection of military policemen and sentinels against threats, assaults, and the like, has consistently been treated under the “general article”— that is, under Article 134, Article of War 96, and so on. I find no intent on the part of Congress to preempt through other specific Articles the protection of such persons from menaces and insubordination, and thus -1 have no doubt that power remains to punish therefor under Article 134. I would suppose that the penalty could rise no higher than dishonorable discharge, total forfeitures, and confinement at hard labor for one year — this by analogy to assault on such an official person. It is arguable that a simple disorder would constitute the preferable analogy. Because of my dissenting position here, I see no point in reaching a conclusion in this phase of the matter.
IV
Accordingly, I would return the record here to The Judge Advocate General, United States Air Force, for reference to a board of review for reconsideration of sentence.