(concurring in the result):
I concur in the result and agree with Judge Latimer’s separate opinion.
The accused was tried by general court-martial and found guilty of wrongful appropriation, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and wrongfully and falsely making an official pass, in violation of Code, supra, Article 134, 10 USC § 934. He was sentenced to bad-conduct discharge and confinement at hard labor for twelve months. Intermediate appellate authorities affirmed, and we granted review on the issue whether the law officer erred in advising the members of the court-martial that the maximum penalty for falsely making the pass was dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years.
The pass offense of which accused was convicted was set out in the specification as follows:
“In that AIRMAN THIRD CLASS CHASE E. WARTHEN, United States Air Force, 392d Installations Squadron, 392d Combat Support Group, did at Vandenberg Air Force Base, California, on or about 1 December 1958, wrongfully and falsely make a certain instrument purporting to be an official pass in words and figures as follows:
[Pass set forth in haec verba]
he, the said Airman Third Class Chase E. Warthen, then well knowing the same to be false.”
Appellant and appellee agree that the foregoing alleges a violation of 18 USC § 499, prohibiting a number of offenses in relation to military passes. However, appellant urges that an intent *98to defraud is an essential element of the offense of falsely making an official pass under that statute, and the failure of the law officer to instruct the members of the court to that effect reduces the delict to a simple disorder and the possible punishment to confinement at hard labor for four months and forfeiture of pay for a like period. Admitting that the statute does not expressly require an intent to defraud, he argues that such is to be implied from the use of the word “falsely.” The Chief Judge apparently agrees with this concept, for he interprets “falsely” to mean a specific intent to defraud or something very close to it, although he affirms the decision of the board of review on the basis that the court members were adequately instructed concerning the particular element involved. While I agree with the result he reaches, I cannot join in the subsidiary conclusion that the statute requires more than the unauthorized intentional making of a pass containing false information.
Title 18, United States Code, § 499, supra, is contained in the chapter dealing with counterfeiting and forgery. It provides as follows:
“Whoever falsely makes, forges, counterfeits, alters, or tampers with any naval, military, or official pass or permit, issued by or under the authority of the United States, or with intent to defraud uses or possesses any such pass or permit, or personates or falsely represents himself to be or not to be a person to whom such pass or permit has been duly issued, or willfully allows any other person to have or use any such pass or permit, issued for his use alone, shall be fined not more than $2,000 or imprisoned not more than five years, or both.” [Emphasis supplied.]
A reading of the statute’s terms indicates clearly that it is possible to commit a pass offense thereunder in one of four ways — by falsely making a pass; by using or possessing a false pass with intent to defraud; by willfully allowing the use of a pass by another; and by impersonating the person to whom a pass has been duly issued. Moreover, the use of the alternative conjunction “or” immediately preceding the phrase “with intent to defraud” establishes that the latter was intended only to affect the use or possession of any such pass or permit. Thus, it is clear that if the accused is to succeed here, he must do so as the result of his interpretation of the term “falsely.”
It may be true, as the Chief Judge argues, that the word “falsely” has been held to mean more than the intentional statement of an untruth. However, as he concedes, its definition depends upon the statute in which it is used. United States v Ariola, 2 USCMA 637, 10 CMR 135; 16 Words and Phrases (Perm ed) 134, et seq. Here, it is clear that the evil Congress sought to eliminate is the reproduction, possession, and use of military documentation which may serve as a means of entrance and egress from our defense installations. It can be contended, therefore, and I believe successfully, that Congress desired to prohibit the production of passes which were false in fact. Thus, we should accord to the language it used an interpretation fairly consonant with this legislative purpose, i.e., that “falsely” means no more than the intentional, unauthorized making of a pass including materially untrue information. This is consistent with the judicial interpretation of similar statutes relating to the false making of United States coins and obligations. There, the legislative purpose was to insure the genuineness of our coin and currency. In United States v Otey, 31 Fed 68 (CC D Ore) (1887), the defendant made the same argument concerning the term “falsely” as is presented here. In disposing of this contention, Judge Deady stated, at page 71:
“After a careful examination of the statute and the subject, I am convinced, contrary to my first impression, 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 indict*99ment 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.” [Emphasis supplied.]
See also Kaye v United States, 177 Fed 147 (CA 7th Cir) (1910), and United States v Russell, 22 Fed 390 (CC D Mass) (1884).
I am of the view that the reasoning employed in United States v Otey, supra, is equally applicable to the provisions of 18 USC § 499, supra. Indeed, if Congress intended to include a specific intent to defraud or its equivalent as an element of the false making of an official pass, it is strange that they employed language restricting that requirement to other offenses denounced in the Act. In this respect, Judge Deady’s remarks are peculiarly suitable. Hence I reject the contention that the legislature’s use of the term “falsely” imports any requirement of a specific intent or similar concept into the offense. It follows that I deem the law officer’s instructions on the maximum sentence proper. Accordingly, I join in the result reached by the Chief Judge.