(concurring in part and dissenting in part) :
With that portion of the principal opinion which places persons of the accused’s class within the intendment of AFFE Circular 141, I concur. Likewise, as to the AFFE Circular, knowledge is not an element of the Article 92 offense. United States v Stone, 9 USCMA 191, 25 CMR 453.
However, I cannot read the latter *434part of the opinion without experiencing the greatest reservation. The order in question was issued by the accused’s commanding officer and prohibited the possession of alcoholic beverages in enlisted men’s billets. It was posted on the company bulletin board which the men were directed to read once a day. In addition, the prohibition was one of the subjects mentioned in lectures given to members of the command. At the trial, the law officer instructed in effect that knowledge of the order upon the part of the accused could be shown either to be actual or constructive. This instruction was, of course, consonant with the provisions of the Manual for Courts-Martial, United States, 1951, see paragraphs 154a (4), 1715, and has been announced more than once in our cases. See United States v Arnovits, 3 USCMA 538, 13 CMR 94; United States v Snyder, 1 USCMA 423, 4 CMR 15; Manual for Courts-Martial, U. S. Army, 1949, paragraph 140a.
The doctrine of constructive knowledge or notice, as it is often called, is not a stranger to military law. Davis, in his well-known treatise, has the following to say:
“It is a well-known principle that all persons are presumed to know the law of the State within which they live or in which they are temporarily domiciled; a similar rule prevails as to knowledge of the orders of a military commander which have been duly promulgated to his command. It may therefore be said that an order affecting a military person becomes operative as to such person when he has received military notice of its existence and contents; that is, if the order be general in character, it becomes operative when it has been formally promulgated to the command to which it pertains; if it be special or individual in its operation, it becomes effective when it has been served upon, or received, by such person through the usual military channels.” [Davis, Military Law, 2d ed, page 382.]
As to what constitutes notice, the following opinion of the Judge Advocate General is apropos:
“2. No precise rule can be laid down as to when a military order, affecting the status, pay, rights, or duties of an officer, can be said to become operative as regards himself. A general principle, analogous to that of the law of notice, should ordinarily be applied to the cases, and the order be treated as not legally taking effect until the officer is personally officially notified of the same. In the absence of an actual personal delivery to or receipt by him of the order or an official copy, the fact of the promulgation of the same at his proper military station will in general be presumed to have given him official notice of its contents — a presumption, however, liable to be rebutted by proof that, without any fault or negligence of his own, knowledge of the same was never actually brought home to him, — as where, for example, he was at the time absent on leave, or ill at a distant hospital, or a prisoner in the hands of the enemy, and therefore was not notified in fact.
“Where indeed the officer fails to receive personal official notice by reason of some fault or neglect of his own, as because of his having absented himself without authority from his station when the order arrived, or because, being on detached service, he has not duly advised the Adjutant General of his address as required by par. 468, Army Regulations, he will not be permitted to take advantage of his own wrong, and the promulgation of the order, upon its receipt, at his proper station or last reported station, will be held to operate as due and effectual, or constructive, notice.” [Winthrop, Digest of Opinions Judge Advocates General of the Army, 1895, page 545.]
Now my colleagues cast aside this long-standing doctrine claiming, inter alia, “that it permits a conviction on the basis of an accused’s negligence in failing to acquaint himself with the *435order,” We thought otherwise in United States v Snyder, supra, for there we stated:
. . Here, the law officer properly instructed the court that one of the necessary elements of proof was that the accused had knowledge, actual or constructive, of the camp regulation allegedly violated.”
There is nothing fundamentally wrong or unfair about requiring servicemen to acquaint themselves with the rules under which they must live in peace or survive in war. Many of the regulations governing their conduct, their assignments, and matters of official and personal interest are posted in a central place for the sole purpose of bringing them to their attention. They are so informed, and if they refuse or neglect to read that which is made readily accessible to them, they must suffer the consequences of their own neglect. The turnover of personnel is rapid, and the giving of personal orders to every individual is virtually impossible. Publication on bulletin boards is, therefore, a necessity which in turn forces the armed services to resort to the doctrine of constructive knowledge. This case presents one of the finer illustrations of why that doctrine must be used. Orders were posted on a bulletin board, and the accused was informed to follow the board daily. He also should have attended the orientation lecture. Yet, knowing that orders relating to his conduct were continually being posted in a conspicuous place and being directed to become familiar with them, I will assume he fails to do so. He then violates one of the orders and is acquitted while the soldier who reads the bulletin board and then violates the same order will be convicted because he had actual knowledge of the order. One soldier is punished for his former conscientiousness, and the other is rewarded for his erstwhile negligence. This injustice may be cured by the doctrine of constructive knowledge, the policy behind which is set out in United States v Gladney, 22 CMR 360 (1956) :
“The constructive notice relied upon in numerous cases involving violations of standing orders or circulars is largely a legal fiction, designed to overcome the difficulty of establishing accused’s knowledge thereof. Personnel are also responsible for taking reasonable action to familiarize themselves with posted regulations, orders and details. What is reasonable in this regard must depend upon the circumstances, including the status, length of service, and duties of the individual concerned.”
See also United States v Robinson, 20 CMR 816 (1955); United States v Genesee, 13 CMR 871, 876 (1953), and cases cited therein.
The status of service regulations published by inferior headquarters is analogous to administrative rules printed in the Federal Register. In the latter case, Congress has provided by statute that the appearance of rules and regulations in the Federal Register gives constructive notice of their contents, 49 Stat 502, 44 USC § 307, which notice may substantially affect civil rights, Federal Crop Ins. Corp. v Merrill, 332 US 380, 68 S Ct 1, 92 L ed 10 (1947), and impose criminal liability, United States v Comstock Extension Mining Co., 214 F2d 400 (CA 9th Cir) (1954). So, in the case of service regulations, the President, under his authority to prescribe rules of evidence before courts-martial, Article 36, Uniform Code of Military Justice, 10 USC § 836, has decreed that, when regulations are promulgated properly, knowledge of their contents is imputed to a violator. Paragraph 154a (4), Manual for Courts-Martial, supra. I believe he acted well within his authority when he so provided, since Article 92(2) does not negate constructive knowledge.
This is not an insignificant principle, for I believe that many cases which have been tried but have not yet reached us will be controlled by this decision. In addition, within the ambit of the Court’s decision are all post, station, and camp regulations. Many such places are the equivalent of smaller cities with all of the attending problems of administration, control, and supervision. To require proof of actual *436notice of camp regulations is somewhat akin to requiring cities to show actual knowledge of all ordinances.
In anticipation of the burdens to be placed on the services by refusing to follow the doctrine of constructive notice, the Court suggests that the element of knowledge can be established by circumstantial evidence. That does not solve the problem unless that form of evidence is permitted to establish the probability of knowledge. However, since circumstantial evidence must establish the fact beyond a reasonable doubt — to the exclusion of “every reasonable hypothesis of innocence,” paragraph 74a, Manual for Courts-Martial, United States, 1951 — I fail to understand how the posting of a regulation, coupled with an order that all personnel read the bulletin board, proves that any enlisted man knows the contents of the posted document. To find the ultimate fact, a court member would be required to presume a compliance with the order unless the Government can produce evidence to show the accused read the regulation. If a presumption must be used, then constructive knowledge is all that is required. And, of course, if an accused testified he did not read the bulletin board, the base for the presumption would fail and there would be no evidence to support the findings.
To avoid the contention that I have written the element of knowledge out of Article 92(2), I offer the following explanation. The first part of that Article does not provide for knowledge, and we have held that when the order emanates from certain designated headquarters, knowledge is conclusively presumed. United States v Stone, supra. Under that doctrine, evidence tending to prove lack of knowledge is immaterial and irrelevant. Not so with orders from lower headquarters. There, any evidence which has probative value to disprove the ingredients making up the base for constructive knowledge is admissible.
As to the case of Lambert v California, 355 US 225, 78 S Ct 240, 2 L ed 2d 228 (1957), I must disagree with the interpretation which my colleagues place upon the works of Mr. Justice Douglas. “The question,” said the Justice, “is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.” Id. at 227. (Emphasis supplied.) The conviction is struck down because:
“. . . Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.”
In this context, I do not believe that the Supreme Court is referring to circumstantial evidence of actual knowledge but rather to proof of facts which establish that a defendant should have known. Lambert had no reason to know —in other words no duty — that she must register, and there were no facts shown which tended to show the probability that she did know. The accused in the instant case stands on a different plane. He was a member of a service unit who had been advised that regulations pertaining to his conduct had been posted in a conspicuous place which was easily accessible for him to read. He was directed to acquire the knowledge by reading what was posted. In all probability, he did know. In Lambert, the conduct of the petitioner was wholly passive, “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” Id. at 228. Despite these distinctions, I prefer to join with the minority in that case, and I quote from Mr. Justice Frankfurter, who spoke for the dissenters:
“If the generalization that underlies, and alone can justify, this decision were to be given its relevant scope, a whole volume of the United States Reports would be required to document in detail the legislation in this country that would fall or be im*437paired. I abstain from entering upon a consideration of such legislation, and adjudications upon it, because I feel confident that the present decision will turn out to be an isolated deviation from the strong current of precedents — a derelict on the waters of the law.”
I wish in this instance I could share the dissenters’ confidence but, unfortunately, I see an armada, not just a derelict.
I would affirm the decision of the board of review.