(dissenting);
I dissent.
Pursuant to his plea, the accused was found guilty of being drunk on duty, in violation of Uniform Code of Military Justice, Article 112, 10 USC § 912, and conduct unbecoming an officer and gentleman, in violation of Code, supra, Article 133, 10 USC § 933. He was; sentenced to forfeit $250.00 per month for ten months and to be reprimanded. The convening authority approved only so much of the sentence as provided for forfeiture of $100.00 per month for five months and the administration of the reprimand. A divided board of review affirmed the findings and sentence, and The Judge Advocate General of the Navy certified to this Court the *381issue whether the accused’s trial was barred by the imposition of non judicial punishment under Code, supra, Article 15, 10 USC § 815.
Accused was a pilot assigned to the U.S.S. Hancock, an aircraft carrier, located at the time of the alleged misconduct in a naval shipyard drydock. All ammunition and fuel had been removed from the vessel. Accused was detailed to perform the duties of officer-of-the-deck in Port from Midnight until 4:00 a.m., January 16, 1959. During the early evening hours of January 15, 1959, he engaged in several hours of proficiency flying at a nearby air station. Upon completion of that task, he drank several cocktails and returned to the U.S.S. Hancock, where he assumed his duties as oificer-of-the-deck at 11:45 p.m. At approximately 2:50 a.m., January 16, 1959, he was found drunk and unconscious in one of the ship’s passageways. An investigation ensued. Upon its completion, the commanding officer, U.S.S. Hancock, acting pursuant to the authority of Code, supra, Article 15, 10 USG § 815, imposed punishment upon the accused, consisting of ten days’ restriction to his stateroom and a letter of reprimand to be signed by the Commander, Fleet Air Alameda. Accused duly served his restriction. However, the Commander, Fleet Air Alameda, concluded that accused’s misconduct merited trial by court-martial and returned the request of the commanding officer, U.S.S. Hancock, that he censure the accused with the notation that, as the offenses were serious, trial by court-martial was warranted. The charges now under consideration were preferred, and trial by general court-martial was recommended.
Prior to his trial, the accused entered into an agreement with the convening authority whereby the latter bound himself to approve no sentence greater than loss of 1000 numbers on the promotion list, forfeiture of $100.00 per month for five months, and imposition of a reprimand in return for the former’s offer to plead guilty. At the trial, the accused moved to dismiss the charges on the ground that he had already been punished under Code, supra, Article 15. His motion was denied. The trial then proceeded to its conclusion.
Initially, I note my agreement with Judge Latimer’s conclusion that we are not here faced with a problem of former jeopardy in the sense of Amendment Y, United States Constitution, and Code, supra, Article 44, 10 USC § 844. A plea in bar of trial based upon that constitutional protection envisions punishment adjudged in judicial proceedings. Patterson v United States, 183 F2d 327 (CA 4th Cir) (1950), cert den 340 US 893, 95 L ed 647, 71 S Ct 200; Mullican v United States, 252 F2d 398 (CA 5th Cir) (1958). The cases cited involve pleas of former jeopardy by prisoners who were tried for escape from confinement after being subjected to penitentiary disciplinary proceedings. We have held the last-mentioned punishment analogous to that administered under Code, supra, Article 15. United States v Williams, 10 USCMA 615, 28 CMR 181. Moreover, Article 15' is entitled “Commanding officer’s non-judicial punishment,” and it is clear that Congress intended it to> amount to no more than a summary disciplinary proceeding. Be that as it may, the same problem is raised for the Article itself provides pertinently:
Ҥ 815. Art. 15. Commanding officer's non-judicial punishment
“(a) Under such regulations as the President may prescribe, any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one of the following disciplinary punishments. for minor offenses without the intervention of a court-martial—
“(e) The imposition and enforcement of disciplinary punishment under this article for any act or omission is not a bar to trial by court-martial for a serious crime or offense-growing out of the same act or omission, and not properly punishable under this article; . . [Emphasis supplied.]
The legislative history of the Code-establishes beyond cavil that it was the-*382intent of Congress to limit imposition of punishment under Code, supra, Article 15, to minor offenses and to provide that invocation of its terms would not serve, in the case of serious offenses, to bar an accused’s later trial by court-martial. House Report No. 491, 81st Congress, 1st Session, pages 14-15; Senate Report No. 486, 81st Congress, 1st Session, pages 11-12. In short, a commanding officer has no •authority to impose punishment under the Article for other than a minor •offense. The difficulty lies in the fact that Congress nowhere included in the Code the characteristics which distinguish “serious” offenses and “minor” infractions.
It is in the resolution of this last problem that I differ fundamentally with my brothers. As evidenced by the principal opinion, they look to accused’s ■delict and all the surrounding circumstances in determining whether a serious offense has been committed. I submit that this approach is demonstrably illogical, and I suggest that the proper method by which to classify a crime ■as “serious” or “minor” involves no more than an examination of the statute creating the offense and the punishment authorized for it by the President under the authority delegated to him by Congress in Code, supra, Article 56, 10 USC § 856.
It is true, as Judge Latimer points out, that consideration of the particular circumstances surrounding an offense is supported by the discussion contained in paragraph 1285, Manual for Courts-Martial, United States, 1951. The Manual provision, however, does not purport to set forth a rule of procedure or evidence, published in accordance with the terms of Code, supra, Article 36, 10 USC § 836. Hence, its relation of a “yardstick” for measuring the gravity of criminal misconduct is not binding on the Court, and I do not find its authoritative pronouncement persuasive.
More specifically, the cited Manual provision purports to test the seriousness of an offense under the Code by “the time and place of its commission, and the person committing it.” Under this standard, an orderly room clerk might properly be punished nonjudi-cially for drunkenness, whereas the operator of an antimissile detection device could only be tried by court-martial. The illogical distinction between the two cases is at once apparent, for the clerk’s intoxication may result in the delayed transfer of his unit or part of its personnel in support of a tremendously important operation, with consequences as terrible as those involved in the detection device operator’s failure to announce an inbound intercontinental missile. Moreover, the Manual’s reference to “the person committing” the offense presumably means his status in the armed forces as an officer or enlisted man. Common sense immediately dictates that the duties performed by the latter are frequently more important militarily than those in which the former engage. Finally, the consideration of the “time” of the misconduct surely can have no relevance to its degree of turpitude. It cannot matter whether an individual deserts, gets drunk, or otherwise misbehaves himself in the daylight hours or during the evening, except insofar as time is an element of the offense. As applied to this case, he who is drunk on duty in the nighttime is certainly guilty of the same degree of misconduct as he who becomes similarly intoxicated in the daytime.
In short, the rule set forth in the Manual, supra, and adopted in the principal opinion, allows a completely ad hoc determination to be made concerning whether, under the particular circumstances, an individual’s crime is serious or petty. This is personal justice with a vengeance and effectively substitutes for the judgment of Congress and the President our individual reaction as Judges to the facts of each case. To such a proposition I cannot subscribe, and I prefer to measure the degree of accused’s misconduct in light of whether Congress sought to make conduct felonious in enacting the statute involved or whether it attained that status from the punishment prescribed by the President.
While Lieutenant Fretwell stands charged with violations of Code supra, *383Articles 112 and 133, I am sure that my brothers agree with me that the two specifications set forth nothing more than different aspects of the same offense. Thus, he is alleged to have been drunk on djity, in violation of Article 112, and to have been found publicly drunk and unconscious aboard ship, in violation of Article 133. Accordingly, his delict should be treated only as drunkenness on duty. Indeed, that is the position heretofore taken at every level.
Code, supra, Article 112, provides:
“Any person subject to this chapter other than a sentinel or lookout, who is found drunk on duty, shall be punished as a court-martial may direct.”
The Code’s legislative history is silent concerning whether drunkenness on duty is considered to fall within the classification of serious offenses. Moreover, there is no parallel offense in civil jurisdictions from which we may draw any conclusion concerning its treatment as felonious misconduct or as a misdemeanor. Nevertheless, a great deal of insight concerning the degree of turpitude involved may be gained by reference to the Table of Maximum Punishments set forth in paragraph 127c of the Manual. There, we find that a violation of Code, supra, Article 112, is punishable by bad-conduct discharge (“designed as a punishment for bad conduct rather than as a punishment for serious offenses of either a civil or military nature,” Manual, supra, paragraph 76a (emphasis supplied)), forfeiture of all pay and allowances, and confinement at hard labor for nine months. It is at once apparent that the maximum punishment thus authorized falls below the traditional dividing line between misdemeanors and felonies, United States v Moore, 5 USCMA 687, 18 CMR 311; and see Black’s Law Dictionary, 4th ed, Felony, page 744, unless we are to permit substitution of dishonorable dismissal from the service for the permitted bad-conduct discharge simply because the accused is an officer. Manual, supra, paragraph 126d. We have, however, as Judge Latimer recognizes, indicated our misgivings about the rules which make prescribed penalties depend upon the status of the offender. United States v Smith, 10 USCMA 153, 27 CMR 227; United States v Claypool, 10 USCMA 302, 27 CMR 376. Moreover, I point out that uncritical acceptance of a rule to the effect that an officer may be dismissed from the service for any violation of the Code, necessarily means that every officer tried by court-martial and found guilty is thereby convicted of a felony. United States v Moore, supra. As felonious misconduct surely falls without the definition of minor offenses within the meaning of Code, supra, Article 15, it logically follows that no officer may be punished by his commanding officer under the provisions of that Article. Certainly, this was not the intent of anyone connected with the enactment of the legislation in question.
The practical and legal conclusion which I believe should be drawn from the foregoing considerations is that we must hold that drunkenness on duty in time of peace is, as a matter of law, a “minor offense.” While the statute is of little use to us in determining the degree of turpitude involved, the punishment prescribed for its violation establishes that it was to be treated as a misdemeanor. Neither a dishonorable discharge nor confinement in excess of one year is authorized for the delict. United States v Moore, supra. To the contrary, the only punitive separation involved is bad-conduct discharge which, as noted above, is imposed only for “bad conduct” and was not designed for the punishment of serious offenses. Manual, supra, paragraph 76a. In short, drunkenness on duty was considered by those charged with fixing punishments under Code, supra, Article 56, as a minor offense, and we should not now substitute our judgment for theirs.
I would answer the certified question in the affirmative, reverse the decision of the board of review, and order the charges dismissed.