(dissenting):
The present case goes much too far— and I cannot agree with my brothers in their disposition of it.
The author of the principal opinion concedes that the making of a false claim and the presentment thereof to a person having authority to pay it constitute wholly distinct offenses which are, presumably, separately punishable. See Uniform Code, Article 131, 50 USC § 725; Manual, paragraph 211. Cf. Article 123, 50 USC § 717; Manual, paragraph 202. Thereafter he affirms findings of guilty of offense A — following the delivery of correct instructions founded on offense B.
While it is true that the defense did not rely at the trial on the difference between making and presentment, I certainly know of no holding of ours to the effect that — on the basis of waiver, because of his theory of defense, or otherwise, save in the case of a judicial confession — an accused may remove the material prejudice inherent in a law officer’s total failure to instruct on the offense charged against the former and of which he was found guilty and punished.
As for United States v. Kubel, cited and relied on by the majority, the situation before us there may be distinguished readily — and I am sure that in it we went as far as we should go. There, in light of the instructions measured as a whole, together with the findings returned, the record conclusively established that the court-martial must necessarily and affirmatively have found the elements missing from the law officer’s charge on larceny, one of the two offenses alleged. It would be supererogative to seek to demonstrate that we are not at all confronted by a problem of that nature here.
I am convinced that to go in the direction pointed by the Hewitt case, cited by my associates, would be to permit this hard case to make an extremely unfortunate contribution to the military law of instructions. I believe that this conclusion is consistent with — even required by — my previous opinions in the area.