(dissenting):
I dissent.
The principal opinion graphically demonstrates that absurd results are obtained when the Court adheres to a rule which is unsupported by reason or logic. My dissenting opinions in United States v Williams, 8 USCMA 325, 24 CMR 135, and United States v Grosso, 7 USCMA 566, 23 CMR 30, called attention to the sheer futility of requiring a court-martial to find that the commission of certain crimes had an adverse impact on the Services. Here we have a more useless application — if that is possible — of the requirement.
The accused was the protagonist in a brawl in a night club in Germany. As a result of the affray, he assaulted at least three individuals. As two of the victims were air police, he was charged with two violations of Article 134 and one violation of Article 128 of the Uniform Code of Military Justice, 10 USC §§ 934 and 928. The former, assaults upon persons executing police duties, are the greater offenses carrying a penalty of a dishonorable discharge and one year confinement, compared to the six months punishment with no punitive discharge imposable for a simple assault consummated by a battery. Table of Maximum Punishments, Manual for Courts-Martial, United States, 1951, page 224.
It seems to me that when Congress proscribed an assault consummated by a battery, it concluded that offenses of that type were inimical to good order and discipline of any service. I, therefore, have no difficulty in concluding that the offense in an aggravated form has a greater impact than one of the simple variety. But strangely enough, this decision affirms a conviction on a simple assault specification where, of course, the court members were not informed that the conduct had to be prejudicial to the good order and discipline of the armed services, but reverses the findings on the aggravated form for a failure on the part of the president of the court to require a finding on that ingredient. Those alleged omissions should be immaterial in this setting as the law is clear that the only distinction between the offenses is the status of the victim.
As Article 59, Uniform Code of Military Justice, 10 USC § 859, allows reversal only when the accused is materially prejudiced, I must assume that my associates believe that reasonable minds could find that a battery upon two air policemen is not conduct prejudicial to the good order and discipline of the armed forces. Even the entertainment of this concept is not justifiable in reason or common sense. Moreover, their disposition overlooks the obvious, for this Court or a board of review could affirm the lesser included offenses of assault and battery. If that disposition was authorized, I fail to see how, or in what way, this accused would be benefited one iota by a reversal.
Therefore, I would affirm the decision of the board of review.