(dissenting):
I dissent. I would prefer to reach the basis of the board of review’s action. In my view the board erred when *416it found that Articles 133 and 134, Uniform Code of Military Justice, 10 USC §§ 933 and 934, stand in the position of greater and lesser offenses. Granted, the same facts as applied to the case of an officer may, under certain circumstances, support a charge laid as a violation of either Article 133 or 134. The Government then has an election as to the Article under which it will proceed.
However, the elements of the two offenses are different and they do not stand in a greater-lesser relationship. Using the classic example of a lesser included offense, every larceny encompasses within it all the elements of wrongful appropriation and if the evidence shows intent to deprive permanently, the offense, of course, becomes the greater one of larceny. Such is not the case here. Every Article 133 offense does not necessarily include within it the elements of prejudice of good order and discipline or discredit upon the armed forces. The elements of prejudice of good order and discipline in the armed forces or discredit upon the armed forces is not an element to the offense under Article 133 and no instruction on these elements is required or proper in a trial under that Article. Article 133 of the Code, which is limited to officers, punishes “conduct unbecoming an officer and a gentleman.” Colonel Winthrop, in his Military Law and Precedents, 2d ed, 1920 Reprint, at page 713, states:
“ ‘Conduct unbecoming an officer and a gentleman’ may thus be defined to be: —Action or behaviour in an official capacity, which, in dishonoring or otherwise disgracing the individual as an officer, seriously compromises his character and standing as a gentleman; Or action or behav-iour in an unofficial or private capacity, which, in dishonoring or disgracing the individual personally as a gentleman, seriously compromises his position as an officer and exhibits him as morally unworthy to remain a member of the honorable profession of arms.”
Conduct violative of Article 133, therefore, is something which discredits the person and there is no necessity to plead or prove any discrediting or prejudicial effect upon the military service. Article 134, on the other hand, applies to both officers and enlisted men and proscribes inter alia disorders and neglects to the prejudice of good order and discipline in the armed forces and conduct of a nature to bring discredit upon the armed forces. Where these are elements of the offense they must be instructed on. United States v Williams, 8 USCMA 325, 24 CMR 135.
In the instant case, the offenses were properly charged under Article 133 and the court-martial was instructed that in order to convict they must find that “under the circumstances, the accused’s conduct was unbecoming an officer and a gentleman.” The court-martial convicted him of that offense and under the above instructions. The majority here affirms a finding of the board of review that the accused is guilty of a violation of Article 134. However, the court-martial did not find a violation of Article 134. The accused was not charged thereunder and the court-martial was not instructed on essential elements of that offense. Cf. United States v Williams, supra. In my view, an accused is prejudiced whenever he is, on appeal, found guilty of some offense of which he was never convicted, simply because it may be considered less serious than the offense for which he was tried. That, in essence, is the result which the majority is here condoning.
The board of review, in my opinion, as noted above, proceeded under a misapprehension of the law. They did, however, state, “We are satisfied that the evidence is sufficient to establish the offenses found, in violation of Article 133.” I would, therefore, return the record to the board of review with instructions to approve the conviction as violative of Article 133 of the Code.