(concurring in the result) :
I concur in the result.
A plea of guilty admits all the facts well pleaded and, if an offense is stated, it matters not which seetion of the Code is mentioned in the charge. That is not a substantial part of the offense. In the case at bar, an offense prohibited by Title 18, United States Code, § 1001, was in fact alleged and, if Article 134 of the Uniform Code of Military Justice, 10 USC § 934, embraces that crime, then the substitution is permissible, provided the accused was not misled in his plea. In United States v Olson, 7 USCMA 460, 22 CMR 250, we said:
“Paragraph 27, page 30, of the present Manual provides: ‘Neither the designation of a wrong article nor the failure to designate any article is ordinarily material, provided the specification alleges an offense of which courts-martial have jurisdiction.’ And we have followed that admonition on several occasions. United States v Deller, 3 USCMA 409, 12 CMR 165; United States v O’Neil, 3 USCMA 416, 12 CMR 172. The theory under which we have proceeded is not difficult of comprehension, for it comes to no more than the principle that whether or not an offense has been alleged depends upon the facts alleged, and the factual allegations are to be found in the specifications, not in the designation of the charge or Article. If the facts are stated by the specifications in such a way that the accused is fully advised of the crime he has committed, is not misled in his defense, and the facts alleged amount to an offense under the law in existence at the time when the acts occurred, the misnomer is immaterial. United States v Sell, 3 USCMA 202, 11 CMR 202.”
Article 134, supra, proscribes crimes and offenses not capital, and we have interpreted that proscription to include those acts of misconduct which are prohibited by Federal statutes. United States v Long, 2 USCMA 60, 6 CMR 60. Neither party disputes the proposition that the allegations of the specifications are sufficient to allege an offense under Section 1001, supra, if the agency of the United States is identified with sufficient particularity. I have no doubt that within the confines of the specification, it is readily ascertainable that the Department of the Army was the agency defrauded.
The question concerning the increase in the maximum sentence if a substitution is permitted is unimportant in this setting. The yardstick used by the court-martial could not have been greater than the maximum permitted by the limitations imposed by the President for a violation of Article 107. Obviously if, because of a designation of the wrong Article, an accused was led to believe he was pleading guilty to an offense carrying a maximum sentence of one year when the court-martial was allowed to consider a greater maximum, then he would be prejudiced. However, no such question is presented by this record. Moreover, I have grave doubts that the punishment for a violation of Section 1001, properly pleaded under Article 134, supra, could exceed that imposable for making a false official statement under Article 107 of the Code.
I do not believe my views are at variance with those expounded in United States v Norris, 2 USCMA 236, 8 CMR 36. There, for many reasons which are set out in the opinion, we concluded that when Congress enacted Article 121, Uniform Code of Military Justice, 10 USC § 921, it pre-empted the field insofar as all wrongful takings were concerned. Those reasons are not present in the instant case, and I find no justification for a belief that Congress, when it enacted Article 107 of the Code, intended to exempt military personnel from the offenses prohibited by Section 1001. Without some clear indication to the contrary, statutes protecting the Government from the use of false statements before its agencies apply equally to all persons.
For the foregoing reasons, I concur with the Chief Judge in affirming the findings and sentence.