Opinion of the Court
Robert E. Quinn, Chief Judge:The accused was convicted by special court-martial of willful disobedience of a lawful order of a superior noncom-missioned officer, in violation of Article 91 of the Uniform Code of Military Justice, 50 USC § 685; of failure to repair to the appointed place of duty at the prescribed time, in violation of Article 86, Uniform Code of Military Justice, 50 USC § 680, and of willful damage to a Government vehicle, in violation of Article 108, Uniform Code of Military Justice, 50 USC § 702. He was sentenced to a bad-conduct discharge, forfeiture of $65.00 per month for four months, and confinement at hard labor for four months. The convening authority approved only negligent damage to a Government vehicle and failure to obey, violations of Articles 108 and 92, respectively, Uniform Code of Military Justice. The board of review affirmed. The following questions were certified by The Judge Advocate General of the Air Force:
“a. As a matter of law, is mistake of fact available to an accused in defense of a Specification alleging an offense of disobedience of orders, as set out in the Specification of Charge I herein?
“b. In the event the first issue is answered affirmatively, did the Board of Review err in holding under the facts of this case that the defense of mistake of fact was not in issue and that, accordingly, the president was not required to instruct thereon sua sponte?”
The accused airman, a motor pool driver at Foster Air Force Base, Victoria, Texas, was dispatched to drive Airman First Class Varrone to an off-base facility, located at Seadrift, Texas. The purpose of the trip was to enable Varrone to assist in an inventory. At Seadrift Varrone embarked upon his duties, and afterward suggested lunch to the accused. The latter refused, and added that he must instead return with the vehicle to the Victoria base. Var-rone insisted that the accused wait until he had finished lunch, pointing out that the vehicle had been dispatched for use of personnel employed in taking the inventory. Master Sergeant Irby, also engaged in the inventory, was drawn into the discussion and ordered the accused to delay his departure until Var-rone had eaten. Despite Sergeant Irby’s order, the accused got into the vehicle and “took off.” Upon his arrival back at the Victoria base, according to Motor Pool Supervisor, Sergeant Fillion, the accused stated “he had gotten into it with a Master Sergeant at Seadrift.”
The accused, testifying in his own behalf at the trial, denied receiving an order from Sergeant Irby not to return to the Victoria base. “He talked to Varrone and looked at me. If he gave me an order I can’t say. Whether he gave me an order or not I don’t *85know.” The petitioner testified that he did not wait for his passenger because he believed that he lacked authority to retain the vehicle beyond the time indicated on his trip ticket. This alleged lack of authority was predicated upon what he believed was a standing operating procedure in his organization. This procedure required that all vehicles be returned to the motor pool within fifteen minutes after expiration of the time shown on the driver’s trip ticket, unless the passenger obtained an extension from the motor pool.
The first question certified inquires whether a mistake of fact is available as a defense against “an offense of disobedience of orders” but adds “as set out in the Specification of Charge I.” The specification set out in Charge I alleges willful disobedience and the appellant was convicted as charged. However, the convening authority approved only the lesser offense of a failure to obey. As a result of the convening authority’s action, we are not now concerned with willful disobedience.
When we direct our attention to a consideration of whether or not mistake was reasonably raised by the evidence, we are compelled to conclude that it was not. At his trial the accused flatly denied ever having received an order from Sergeant Irby. The Sergeant, on the other hand, testified that he twice ordered the accused not to return to the Victoria base. After the first order the accused gave no acknowledgment and acted “like he didn’t want to comply.” Thereafter, the sergeant walked toward the accused, and this time repeated the order “a little rough ... I said it in a meaning manner . . . As an order .... I told him, ‘you will definitely wait until Airman Varrone eats and I mean it.’ Those are the very words I said.” There can be no question but what the accused heard and understood the order. He told his motor pool supervisor, Sergeant Fillion, upon his return to the motor pool, that Fillion could expect a report on him for the reason that “he had gotten into it with a Master Sergeant at Seadrift.” Nor can it be argued that the order was illegal. Airman First Class Varrone had not finished the inventory by lunchtime. Under the circumstances, the order was quite sensible and reasonable since it would save a needless trip back from the Victoria base to pick up the personnel taking the inventory. Airman Varrone testified:
“. . . I finished all the typing' and paper work about two hours after we got there, and then it was about time for chow, and Airman Jones went out to the truck and said he was going back to the base. I went out and said that he should stay and eat that I had just about finished up the work. He said he was going back to the dispatch office, that the truck was given to Special Services to come down and take inventory and he was going back. I told him that the truck was dispatched out to Special Services and when I got through we could go back. He said no, he was going back, either with or without me. About that time Sgt. Irby heard the conversation and he told us to come in and eat, and Airman Jones didn’t want to come in, so Sgt. Irby told me to come on in and eat and he told Airman Jones to stay until I had finished eating and the inventory, and then we could go back to the base. I went in to eat, sat down and the truck started up and he took off. Sgt. Irby called the Provost Marshall [sic] and reported it.”
The facts in this ease fall within the decision in United States v Archibald, 5 USCMA 578,18 CMR 202, where we said, “The case presented by the defense is so contradictory and actually incriminatory as to preclude any finding except that of guilty . . . Taken as a whole the defense evidence of mistake patently falls far short of the reasonableness required to raise an issue of fact.”
The instructions of the president were correct. The decision of the board of review is affirmed.