(concurring in the result) :
I concur in the result.
I agree that the offense of wrongfully and falsely making a false official pass permits imposition of punishment including three years’ confinement. However, in view of prior decisions by this Court which may possibly have injected some confusion into this area, I deem it advisable to discuss them briefly.
In United States v Blue, 3 USCMA 550, 13 CMR 106, we concluded that wrongful possession of a false pass without intent to deceive was a mere disorder, punishable by four months’ confinement and partial forfeitures. See also United States v Tamas, 6 USCMA 502, 20 CMR 218. And in United States v Karl, 3 USCMA 427, 12 CMR 183, where there was no allegation of intent to deceive or defraud, this Court held that offenses charging wrongful sale of *96blank pass forms were disorders under Article 134, Uniform Code of Military-Justice, 10 USC § 934. Likewise, in United States v Alberico, 7 USCMA 757, 23 CMR 221, we determined that where the gist of an accused’s delict was wrongful possession of blank pass forms, it was, in the absence of intent to deceive, punishable as a mere disorder.
That is not to say, however, that all pass offenses are but mere disorders unless the offender intended to deceive or defraud. Indeed, quite to the contrary, as the Chief Judge points out, the Federal penal statute requires such intent only in instances of possession or use, but does not prescribe that intent as an element of the offense where the crime is committed by making, forging, counterfeiting, altering, or tampering. 18 USC § 499. And the parties are correct in their agreement that pass ■offenses in the military spring from the Federal statute.
A careful consideration of our prior holdings demonstrates they are entirely consistent with that concept and the particular wording of the law. Specific reference to our opinion in United States v Blue, supra, clarifies the matter. There the accused’s approved conviction was for wrongful possession of a false pass without intent to deceive. The Table of Maximum Punishments permits imposition of three years’ confinement for “making, using, altering, possessing, selling, or otherwise disposing of” a false or unauthorized military pass. Paragraph 127c, Manual for Courts-Martial, United States, 1951, page 226. With regard to that accused’s possession offense, we held that failure to include intent to deceive in the listing could not be interpreted as an intent to eliminate that element from the substantive offense. But we went on to say:
“. . . The listing includes many variations in the way in which the offense may be committed and the intent to deceive is not principally important in all.
“. . . sample form No. 138 in Appendix 6, at page 490, is a coverall specification for the various offenses relating to military passes. In United States v Karl, 3 USCMA 427, 429, 12 CMR 183, 185, we held that intent to deceive was an element which was associated in the form specification with possession of the pass. We there stated:
‘. . . However, the form is a cover-all for various types of offenses and it must be considered in the light of the offense committed as the several offenses involving unauthorized military or naval passes are different, and all do not require fraudulent intent. A close examination of the sample form discloses that the phrase “with intent to defraud or deceive” is bracketed in such a manner as to be required only in cases where it is alleged that the accused used, or had in his possession, a false or unauthorized pass, and is apparently not necessary where the specification alleges the sale of a pass. . . .’ [Emphasis supplied.]
“Implicit in that finding is the suggestion that in order to place possession of a false pass on the same plane of gravity with other offenses included in the form specification an intent to deceive must be present.”
[Emphasis partially supplied.]
Quite clearly we indicated our belief that intent to deceive is required in the three-year pass offenses only in instances of possession or use. Confusion, then, can only arise from our decision in United States v Karl, supra, where we held sale of pass forms to be a disorder. It must be remembered, however, that in Karl, as in Alberico, we were concerned with blank pass forms and, of course, a form has no apparent efficacy until it is filled in. While sale of such a blank form is obviously a disorder, it is certainly not the same offense nor so serious as selling a completed false or unauthorized liberty pass. This difference should be apparent from the fact that Congress proscribed certain acts and conduct pertaining to false passes — including the offense with which we are concerned *97in the case at bar, the making thereof —as offenses carrying a maximum penalty of five years’ confinement, but it said nothing about the possession or sale of blank pass forms. Thus our opinion in Karl does not at all indicate we would require an accompanying intent to deceive to raise sale of a false pass — or the wrongful making or altering thereof — to the level of the offense for which the Table of Maximum Punishments, supra, prescribes a three-year imposable sentence.
Rather, the situation with which we are here concerned is somewhat similar to counterfeiting. In United States v Otey, 31 Fed 68 (1887), to which the Chief Judge refers, the accused moved to arrest judgment on his counterfeiting conviction on the ground that his indictment failed to allege intent to defraud. The statute therein involved proscribed falsely making, forging or counterfeiting United States coins and also other activities when accompanied by the intent to defraud. It was there held:
. . that the knowledge and intent to defraud mentioned in section 5457 of the Revised Statutes refer only to the crime of passing counterfeit money, or having the same in possession; and therefore an indictment for counterfeiting need contain no averment on the subject. And the very fact that the qualification of knowledge and intent to defraud is expressly stated twice in the section, in the same words, in the definition of the crimes of passing and possessing counterfeit coin, and not in the definition of the crime of counterfeiting it, shows plainly that it was not the intention of congress to make these circumstances an element of the latter crime. As the statute is drawn, if it was intended to make an intent to defraud an express ingredient of the crime of counterfeiting, it would have been so stated before proceeding to the definition of the crimes of possessing and passing spurious coin.”
See also Kaye v United States, 177 Fed 147, 150, 151 (CA7th Cir) (1910).
The same reasoning applies here and dictates the conclusion that intent to deceive is not an element of falsely making an official pass. Accordingly, it follows that the law officer properly instructed that permissible punishment for this offense included confinement for three years. I, therefore, join in affirming the decision of the board of review.