Opinion of the Court
Homer Ferguson, Judge:Master Sergeant Nathaniel W. Dozier was tried and convicted by general court-martial convened at Oxon, England, of several offenses. Those pertinent to this appeal include possession of a number of unauthorized ration cards, a violation of Article 92, Uniform Code of Military Justice, 10 USC § 892, and eight specifications alleging the forgery of ration cards, in violation of Article 123 of the Code, supra, 10 USC § 923. Also convicted of similar charges, but at a separate trial, was Sergeant Henry A. Smart. Before the board of review, several issues were assigned by appellate defense counsel on behalf of each accused. The major contention of each was that the ration cards were not a proper subject of forgery. The Government, however, urged that, assuming arguendo the accused were not guilty of forgery, their acts were clearly in contravention of Article 134 of the Code, supra, 10 USC § 934.
The board of review spent a considerable portion of its opinion (United States v Smart, 23 CMR 454) discussing whether ration cards were the subject of forgery. It noted that “A forged ration card, by the use of which the forger purchases and pays in full for the rationed items, does not defraud the USAFE Exchange of anything of value without compensation.” It concluded that use of forged ration cards interfered with, or impaired, a governmental function. Consequently, it held that the “problem,” viz, whether or not forged ration cards were the proper subject of forgery, was merely of “academic interest.” It also determined that each specification alleged a violation of 18 USC § 1001,1 as a charge under Article 134 of the Uniform Code, supra.
It is well settled that if a specification framed as a violation of a particular Article states facts showing a violation of another Article, the conviction may be sustained under the latter Article if the accused is not thereby misled. United States v Olson, 7 USCMA 460, 22 CMR 250; United States v O’Neil, 3 USCMA 416, 12 CMR *446172. The problem, however, is the applicability of that principle to the facts of this case. That problem has two aspects. The first is whether the specification alleges a violation of § 1001, supra. If it does, then the second consideration is whether the accused was prejudiced at the board of review level by substitution of the Article under which the charge is'Iaid.
Typical of the eight forgery specifications of which the accused was found guilty is the following:
“In that Master Sergeant Nathaniel W. Dozier, US Army . . . did, . . . with intent to defraud, falsely make the signature of Captain Ira W. Blackwell to a certain instrument, to wit: USAFE Special Activities Permit and Ration Card, Serial Number B 063916 . . . which said instrument would, if genuine, apparently operate to the legal prejudice of another.”
We first consider whether this specification sufficiently alleges conduct viola-tive of 18 USC § 1001, as held by the board of review.
Section 1001 proscribes the making of any “false, fictitious or fraudulent statement” in a matter within the jurisdiction of any department or agency of the United States. The materiality of the representation must be established. Freidus v United States, 223 F2d 598 (CA DC Cir) (1955). It is not clear whether materiality must also be alleged in the indictment. See United States v Larocca, 245 F2d 196 (CA 3d Cir) (1957); Weinstock v United States, 231 F2d 699, 701, 705 (CA DC Cir) (1956). Moreover, materiality is a substantial matter of which the accused was not apprised by the original designation of the statute allegedly violated. These circumstances cast serious doubt on the correctness of affirming the conviction as a violation of § 1001. See United States v Ekenstam, 7 USCMA 168, 21 CMR 294. We need not, however, resolve that doubt. An unquestioned obstacle to affirmance appears in the instructions.
In United States v Addye, 7 USCMA 643, 23 CMR 107, the accused was charged with forging a letter requesting partial pay. The law officer, after instructing on the essential elements of forgery, advised the court that it was enough “ ‘if the acts charged tend to impair or impede a governmental function.’ (Emphasis supplied.)” We held such an instruction prejudicially erroneous since Article 123 of the Code, supra, requires that the instrument have apparent efficiency to affect a legal right of another and impairing or impending a governmental function is not the same as affecting a legal right. We reversed the accused’s conviction because the instructions provided the court-martial with an incorrect use of law for guidance in its deliberations on the accused’s guilt or innocence.
Under § 1001 it is an offense for anyone to do any fraudulent act which is calculated to or does “obstruct or impair governmental agencies and/or the value of their operations, documents and reports.” United States v Myers, 131 F Supp 525 (ND Cal) (1955). There can, of course, be no perversion of a governmental function from a false statement “that was incapable of affecting or influencing such function.” Freidus v United States, supra. The question of whether particular conduct engaged in by an accused obstructs or impairs a governmental function must, in the final analysis, rest with the triers of fact. At no point in instructions was this issue submitted to the court-martial. A finding that a false writing affects the legal rights of a particular person is not the same as a finding that the writing has perverted the operations of a governmental function. United States v Addye, supra. In this respect the accused was prejudiced. We conclude, therefore, that the board of review erred in affirming the accused’s conviction of specifications 1 through 8, Charge III, as violations of 18 USC § 1001.
The remaining issue concerns the applicability of Footnote 52 to the speei-*447fication of Charge I which alleged a violation of a Brigade Memorandum3 prohibiting possession of unauthorized ration cards for the purpose of using them in the purchase of controlled items.4 If the Footnote is applicable, the offense may only be punished as a disorder with an authorized maximum sentence not to exceed confinement at hard labor for four months and partial forfeitures of two-thirds pay per month for a like period; whereas, if the Footnote is inapplicable, the maximum sentence for the offense may extend to dishonorable discharge, total forfeitures and confinement at hard labor for two years. We believe the Footnote applies in the instant case and that the maximum punishment for the offense is limited to that made punishable by the Uniform Code as a disorder. United States v Hammock, 8 USCMA 245, 24 CMR 55; United States v Alberico, 7 USCMA 757, 23 CMR 221; United States v Tamas, 6 USCMA 502, 20 CMR 218.
The decision of the board of review as to specifications 1 through 8 of Charge III is reversed and the sentence is set aside. The record of trial is returned to The Judge Advocate General of the Army for submission to the board of review for further proceedings consistent with this opinion.
Chief Judge Quinn concurs.Ҥ 1001. Statements or entries generally
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. June 25, 1948, c. 645, 62 Stat. 749.”
Footnote 5 of the Table of Maximum Punishments, Section A, paragraph 127c, Manual for Courts-Martial, *447supra, provides that punishment for violating a lawful general regulation pursuant to Article 92 of the Code, supra, does not apply in those cases wherein the accused “is found guilty of an offense which, although involving a failure to obey a lawful order, is specifically listed elsewhere in this table.”
Memorandum Number 7, Headquarters, 32d Antiaircraft Artillery Brigade, dated February 10, 1956, entitled “Regulated Activities and Transactions.”
Paragraph 4/2 of the regulation referred to in the specification states the following:
“f. Regulated and Prohibited Transactions:
(2) Ration Cards'. Exchange Ration apd Luxury Ration Cards, Class VI Ration Cards and Commissary Cards, are issued to members of this command and their dependents solely to enable them to purchase controlled items. The lending, giving, selling, transferring, delivery of possession or bartering in any manner of these cards or of the coupons attached thereto (except to authorized dependents of the person to whom issued) is prohibited. No person subject to this Memorandum will have such cards or coupons in his possession for the purpose of using them in the purchase of controlled items unless they shall have been duly issued to him or his authorized dependents. Exchange Ration and Luxury Ration Cards, Class VI Ration Cards and Commissary Cards will not be used as identification cards, and will not be pledged as security in any transaction with anyone.”