Opinion of the Court
HomeR FERGUSON, Judge:At about eleven o’clock on the evening of July 27, 1956, the accused entered the barracks room of two airmen. One was lying on a bunk while the other was seated at a table. After entering the room, the accused closed the door and sat at the foot of the occupied bunk. He greeted the occupants by saying, “Hi,” and without further ado pulled a pistol from his top pocket and fired one shot into the wall of the room. The occupants of the room requested that he leave, whereupon he arose, placed the pistol back in the pocket from which he had drawn it, and left. The accused’s facial expression remained the same throughout this brief episode.
The Charge of Quarters, on hearing “small explosions going on in the squadron area,” decided to investigate. He met the accused on the stair landing of his barracks and requested that he surrender the pistol. The accused refused. He then told him to return to his room and go to bed, which the accused agreed to do. The Charge of Quarters then notified the Air Police.
An Air Policeman, responding to the call for assistance, found the accused walking in a street near his barracks with a pistol in his right hand. When he first saw the accused, he was approximately fifty feet away. While the accused’s back was turned, he yelled to him in a loud voice, “I am an Air Policeman. I am behind you. You will drop your weapon on the ground, raise your hands, and don’t turn around.” Upon hearing this, the accused turned around and said, “You are kidding.” The Air Policeman thereupon fired a shot to the left of the accused. The accused remained unconvinced by this warning and stepped forward, saying, “You are still kidding.” To prove otherwise, the Air Policeman fired another shot, this time to the right side of the accused. After firing the second shot, the accused again advanced, and again remarked, “You are still kidding.” He was again told to drop his weapon and a third shot was fired a foot or two away from his feet. ' After the third shot, the accused said, “Oh, I see you now.” At this time the accused was approximately thirty feet away from the Air Policeman. When the accused stepped forward again, the Air Policeman could see “the pistol barrel . . . in line with me.” He thereupon dropped to one knee and told the accused that if he didn’t lay the weapon down, he would shoot him. The accused reacted to this warning by saying, “You are still kidding.” A fourth shot was fired. The accused then threw the pistol down saying, “Here, take the dam [sic]: thing.” After warning the accused several times to back away from the pistol, he finally responded and the weapon was retrieved. The accused was then taken to Air Police Headquarters where a search of his person revealed an unopened half pint of whiskey. Each prosecution witness, including the two: airmen who occupied the barracks which the accused had entered, the Charge of *165'Quarters, the Air Policeman who had apprehended the accused, and the airman who later searched the accused, described him as being in varying stages of intoxication.
This series of events resulted in the accused’s conviction by general court-martial at Keesler Air Force Base, Mississippi, for assaulting an Air Policeman in the execution of his duties and willfully discharging a firearm, both in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was also found guilty of violating a lawful general regulation by introducing an alcoholic beverage on the base, in contravention of Article 92 of the Code, supra, 10 USC § 892. The findings and sentence as approved by the convening authority were subsequently affirmed by the board of review. The Judge Advocate General of the Air Force has certified six issues to this Court, which concern the correctness of certain conclusions reached by the board of review in its opinion. These issues will be discussed later in this opinion. It is first desirable, however, to relate the evidence presented on behalf of the accused.
The defense first presented three character witnesses, each of whom testified substantially that he had known the accused a considerable period of time and that his reputation in the community was good and his performance of duties was excellent. It was also stipulated that the accused had been on continuous active duty for some fourteen years. The defense next called Captain Abrams, a neuropsyehiatrist, who had examined the accused. At the outset Captain Abrams made it clear that the accused was not legally insane either at the time the offenses were committed or at the time of trial. He then proceeded to give his “evaluation, diagnosis and prognosis” of the accused. In his opinion the accused was suffering from a mental disorder- falling.within the “character and behavior group.” Although he could distinguish right from wrong and adhere to the right, his ability to do so was impaired. The assault on the Air Policeman and the wrongful discharge of the firearm were for the most part, in his opinion, the product of: “1. His psychiatric illness; 2. His minimal or marginal intellectual ability; and 3. His state of alcoholic intake at that time.” He further stated that because of his psychiatric condition he did not believe the accused was capable of “form[ing] completely the degree of premeditation, intent, willfulness or- malice called for by the nature of the alleged charges.” The psychiatric testimony was the only evidence presented regarding the accused’s mental condition. ' <
After the defense had presented its case and closing arguments had been made, the law officer instructed the court on the elements of the offenses charged. He further instructed on voluntary intoxication and. lack of mental capacity as these conditions‘affected the accused’s ability to entertain the specific intent to willfully. discharge a firearm or to recognize an air policeman. There were no objections or requests for additional instructions.
The dominant issue, as framed in the certified questions, is a narrow one. Stated briefly, it is this: May a condition characterized as a character and behavior disorder cause a lack of mental capacity to intend?1 Like the board of review below we have little desire “to construct or perpetuate any semantical labyrinths” concerning the question of categorized mental defects. We are not disposed — assuming our technical competency — to define or distinguish the entire panoply of psychiatric conditions included within the concepts of 'modern psychiatry.2
*166As one student of the problem has remarked, “Between the two extremes of ‘sanity’ and ‘insanity’ lies every shade of disordered or deficient mental condition grading imperceptibly one into the other.” Weihofen, Partial Insanity and Criminal Intent, 24 Ill Law Rev 505, 508. If the certified question seeks to review our attitude toward the military nomenclature of the terminology and classification of mental conditions, we must decline the invitation. We recognize that nonmilitary doctors might — and quite often do — define particular mental conditions in different ways. As a matter of fact, the militai’y psychiatrist who testified in the instant case expressed considerable personal doubt on the subject of categorizing mental conditions. He explained that “in the military structure it has been ordained almost in a legal fashion that *167people with the diagnosis that falls within the character and behavior disorder group have certain implications; and those falling in the neurotic and psychotic group have other implications.” He went on to explain, however, that “this does not mean that a person is healthier because he has a character disorder, or that he is sicker because he has a neurotic or psychotic disorder —because of the type diagnosis they have. In a modern psychiatric frame of reference, many character disorders are much sicker than are the psychoneurotic and psychotic groups.”
Our research has failed to disclose any general recognition of the term “character and behavior disorder” among the leading treatises of psychiatry. Davidson, in his work on “Forensic Psychiatry,” 1952 ed, under the heading of “Psychopathic Personality,” (page 217), makes mention of “disorders of character” such as “alcoholism, sexual perversion, drug addiction and psychopathy.” He recognizes the general confusion which has arisen as a result of the use of the phrase “psychopathic personality” and readily concedes that since “psychiatrists are unable to agree on the meaning, the judicial authorities are understandably reluctant to adopt a general rule about the competency of psychopaths.” Guttmacher and Weihofen in “Psychiatry and the Law,” 1952 ed, are of the opinion that the term “psychopath” “is probably the most abused word in the whole psychiatric vocabulary” (page 86). It is even noted that some psychiatrists have completely discontinued the use of the term together with the concept which it represents. The authors explain that this represents merely “another instance of the fluid state of psychiatric ideology . . . [which] may seem upsetting to many lawyers, preoccupied as they typically are in seeking certainty in precedent.” Cleckley, in his highly regarded book, “The Mask of Sanity” (3d ed), refers to the psychopathic personality group as the “unclassified people.” He notes the confusion and inconsistencies which have developed concerning an individual classified under the so-called psychopathic personality group.
For this Court, therefore, the question is not one of classification but of effect. We are concerned only with whether credible evidence exists which may properly be considered by the triers of the fact in determining whether an accused lacks the mental capacity to entertain a specific intent or have whatever other state of mind is required for the offense charged. We prudently leave the question of classification to the psychiatrists. Accordingly, we hold that it is the evidence presented concerning the disorder which raises the issue and not the nomenclature used to classify it.
We next consider the question of whether the issue was raised in the case at bar. Psychiatric testimony produced on the accused’s behalf was merely to the effect that his condition was one which would produce only an “impaired ability” to form a specific intent and not a total “inability” to do so. More than partial mental impairment must be shown in order to raise the issue. There must be evidence from which a court-martial can conclude that an accused’s mental condition was of such consequences and degree as to deprive him of the ability to entertain the particular state of mind required for the commission of the offense charged. United States v Kunak, 5 USCMA 346, 17 CMR 346. In the instant case there is a complete absence of any evidence showing lack of capacity to intend, as distinguished from an impaired ability to intend. We conclude, therefore, that the issue of lack of mental capacity to intend was not raised and accordingly the law officer was under no duty to so instruct. In view of our holding on the certified questions noted above, further discussion of the remaining issues is unnecessary.
The decision of the board of review is affirmed.
Chief Judge QUINN concurs.Throughout its opinion the board employed the term “lack of mental capacity to intend” to avoid the “confusion” which it found had resulted from use of such descriptive phrases as “partial mental impairment” or “partial insanity.” The Judge Advocate General of the Air Force has utilized the same terminology in drafting the certified issues and we will likewise refer to the defense in that manner in this opinion.
SR 40-1025-2; NAVMED'P-1303; AFR 160-13A, June 1949, Joint Armed Forces, NOMENCLATURE AND METHOD OP RECORDING PSYCHIATRIC CONDITIONS, *166list the following classifications of psychiatric conditions which are recognized by the services:
“a. Psychotic disorders.
(1) Schizophrenic reactions:
(a) Schizophrenic reaction, simple type
(5) Schizophrenic reaction, hebephrenic type
(c) Schizophrenic reaction, catatonic type
(d) Schizophrenic reaction, paranoid type
(e) Schizophrenic reaction, latent
(/) Schizophrenic reaction, NEC
(2) Affective reactions:
(a) Manic-depressive reaction
(6) Psychotic depressive reaction
(e) Involutional Melancholia
(3) Paranoid reactions:
(а) Paranoia
(б) Paranoid state
Psychiatric disorders with demonstrable physical etiology or associated structural changes in the brain:
(1) Psychotic disorders with demonstrable physical etiology or associated structural changes in brain
(2) Nonpsychotie mental disorders with demonstrable physical etiology or associated structural change in brain
“c. Psychoneurotic disorders:
(1) Anxiety reaction
(2) Dissociative reaction
(3) Conversion reaction
(4) Phobic reaction
(5) Obsessive-compulsive reaction
(6) Neurotic depressive reaction
(7) Somatization reactions:
(а) Psychogenic cardiovascular reaction
(б) Psychogenic gastrointestinal reaction
(c) Psychogenic respiratory reaction
(d) Psychogenic genitourinary reaction
(e) Psychogenic skin reaction
(/) Psychogenic musculo-skeletal reaction
(g) Psychogenic asthenic reaction
([h) Psychogenic reactions affecting other systems
(8)Hypochondriacal reaction
“d. Character and behavior patterns :
(1) Pathological personality types:
(а) Schizoid personality
(б) Paranoid personality
(e) Cyclothymic personality
(d) Inadequate personality
(e) Antisocial personality
(/) Asocial (Amoral) personality
(g) Sexual deviate
(2) Immaturity reactions:
(a.) Emotional instability reactions
(5) Passive dependency reaction
(c) Passive-aggressive reaction
(d) Aggressive reaction
(e) Immaturity with symptomatic habit reaction
(3) Alcoholism (except simple drunkenness or acute poisoning due to alcohol)
(4) Addiction
(5) Primary childhood behavior reaction
“e. Disorders of intelligence:
(1) Mental deficiency, primary
(2) Mental deficiency, secondary
(3) Specific learning defect
"f. Transient personality disorders due to acute or special stress:
(1) Combat exhaustion
(2) Acute situational maladjustment”