(concurring in part and dissenting in part) :
I concur in part and dissent in part.
In my opinion, the evidence adduced by the accused in mitigation and extenuation is completely inconsistent with his plea of guilty to the Additional Charges of housebreaking and wrongful appropriation. As Uniform Code of Military Justice, Article 45, 10 USC § 845, requires entry of a plea of not guilty if an accused “after a plea of guilty sets up matter inconsistent with the plea,” I must disagree with my brothers’ conclusion that the conviction may be affirmed simply because his formal judicial confession was “voluntary.” See my separate opinions in United States v Watkins, 11 USCMA 611, 29 CMR 427, and United States v Clay, 11 USCMA 422, 29 CMR 238. See also United States v Butler, 9 USCMA 618, 26 CMR 398; United States v Palacios, 9 USCMA 621, 26 CMR 401.
Pursuant to his plea, the accused was found guilty of reckless driving, in violation of Code, supra, Article 111, 10 USC § 911; leaving the scene of an accident, in violation of Code, supra, Article 134, 10 USC §934; three specifications of housebreaking, in violation of Code, supra, Article 130, 10 USC § 930; two specifications of wrongful appropriation, in violation of Code, supra, Article 121, 10 USC § 921, and one specification of larceny, in violation of the same Article. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement at hard labor for one year. A pretrial agreement with the convening authority led to the reduction of his sentence to bad-conduct discharge, forfeiture of all pay and allowances, reduction, and confinement at hard labor for one year. The board of review affirmed the findings but determined that only so much of the sentence as provided for confinement at hard labor for six months and partial forfeitures was appropriate. Subsequently, the Acting The Judge Advocate General of the Army remitted the unexecuted portion of accused’s sentence to confinement. We granted review on the issue whether his plea of guilty to the Additional Charges and their specifications was provident.
True it is, as the principal opinion notes, that the accused was fully advised concerning the meaning and effect of his plea, albeit no specific inquiry was made concerning whether he possessed a conscious realization of his guilt. United States v Butler, United States v Palacios, both supra. Nevertheless, after the findings of the court-martial were announced, accused’s attorney declared he intended to establish that the sole reason for accused's house-*628breakings and wrongful appropriations was the orders of his commanding officer. He proceeded to do just that, for by means of the testimony of various witnesses, it was demonstrated that supply shortages existed in accused’s •company and other similar units assigned to his battalion. Accused’s company commander appointed him “official company scrounger” and directed him to make up the shortages by entering various buildings at Camp Drum, Hew York, and removing specified items •of Army property for distribution among the various battalion organizations. This procedure was made possible by the fact that accused’s unit was temporarily assigned to Camp Drum pending the use of that installation by reserve units for summer training. Buildings had been fully equipped with supplies. It was thus a simple matter to enter various unguarded supply rooms and make off with the needed items of property.
The accused having declared, and, indeed, having demonstrated, that his ■“housebreakings,” and “wrongful appropriations” were committed upon the •orders of his commanding officers, the question arises whether that showing is inconsistent with his plea of guilty. I think it clear that it is.
In United States v Hayes, 8 USCMA 627, 25 CMR 131, the Chief Judge stated, on behalf of a majority of the Court, at page 629:
“Not every wrongful taking constitutes a violation of Article 121. See United States v Norris, 2 USCMA 236, 8 CMR 36. The intent to deprive the owner of his property, either permanently or temporarily, must include a mens rea,. Therefore, the mere ‘borrowing’ of an article of property without the prior consent of the owner does not make out either of the offenses defined in Article 121. Something more is required, and that something is criminal intention.” [Emphasis partially supplied.]
Of course, the same principle is applicable to housebreaking, in violation of Code, supra, Article 130. It is in the area of intent that the company commander’s orders become important, for if accused acted pursuant to those instructions and obtained property of the United States for the benefit of the United States, it is difficult for me to perceive that he possessed the criminal mind necessary for the commission of an offense. Morissette v United States, 342 US 246, 72 S Ct 240, 96 L ed 288 (1952). We were faced with a strikingly similar problem in United States v Thornton, 8 USCMA 446, 24 CMR 256. There, in discussing the materiality of the testimony of a witness whose attendance at the trial was unsuccessfully sought by the accused, we related the defense assertion that he would testify that, as accused’s superior, he authorized the actions which led to some of the charges. Of the materiality of this testimony, we stated, at page 449:
“In reviewing the case, the board of review held that the ‘major factual issue’ was the accused’s explanation of his actions. Nevertheless, it concluded that the witness’ testimony was immaterial. On that point we reach a different conclusion. Under the evidence, the court-martial could have found that the accused honestly believed he was entitled to be paid for the services he performed in accordance with the adopted plan, or, in the alternative, that he was honestly mistaken about his commanding officer’s authority to authorize the plan for payment of compensation. If the court-martial so found, it would have been duty-bound to acquit the accused of larceny because of the absence of the required criminal intent.” [Emphasis supplied.]
It is thus apparent that we have heretofore pointed out the inconsistency between guilt of crimes involving specific intent and the fact that they allegedly resulted from the orders of superior officers. There is nothing new in permitting command authority to be pleaded as a defense. United States v Gusik, 75 BR 265. It is set forth by Colonel Winthrop as follows:
‘‘That the act charged as an of-fence teas done in obedience to the order — verbal or written — of a military superior, is, in general, a good defence at military law.
*629“The act, however, must have been ■duly done — must not have been either wanton or in excess of the authority or discretion conferred by the order.
“Further the order, to constitute a defence, must be a legal one. It must emanate from a proper officer — a superior authorized to give it — and it must command a thing not in itself unlawful or prohibited by law. . . . But for the inferior to as.sume to determine the question of the lawfulness of an order given him by .a superior would of itself, as a general rule, amount to insubordination, .and such an assumption carried into practice would subvert military discipline. Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of ■obedience being cases of orders so manifestly beyond the legal power or •discretion of the commander as to admit of no rational doubt of their unlawfulness. Such would be a com-mand to violate a specific law of the land or an established custom or written law of the military service, •or an arbitrary command imposing .an obligation not justified by law or usage, or a command to do a thing wholly irregular and improper given by a superior when incapacitated by intoxication or otherwise to perform his duty. Except in such instances of palpable illegality, which must be •of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in obeying it he can scarcely fail to be held justified by a military court.” [Emphasis partially supplied.] [Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, pages 296-297.]
In United States v Clark, 31 F 710 (CC ED Mich) (1887), the same principle 'was recognized by the Federal courts.
“So, in the case of McCall v McDowell, 1 Abb (U. S.) 212, 218, it is said that ‘except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the order of his commander. Otherwise he is placed in the dangerous dilemma of being' liable in damages to third persons for obedience to an order, or to the loss of his commission and disgrace for disobedience thereto. * * * The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in the army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as he may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions.’ It is true this was a civil case for false imprisonment, and these observations were made with reference to a question of malice which was material as bearing upon the plaintiff’s right to punitory damages, as it is also a necessary ingredient in the definition of murder.” [United States v Clark, supra, at page 716.]
The reasoning of the foregoing authorities is persuasive of the validity of the defense of obedience to superior orders under the limitations which are set forth. Not only is immediate, unquestioning compliance with orders necessary to the maintenance of military discipline, but its existence is inconsistent with the guilty mind which has heretofore been deemed so necessary to support a criminal conviction. Morissette v United States, supra; United States v Hayes, supra. Thus, the author of the opinion in United States v Clark, supra, adverted to its importance in resolving the question whether a member of the armed forces acted maliciously in killing an escaped prisoner. In like manner, its existence does away with the mens rea required for the offenses of wrongful appropriation and housebreaking as depicted in this rec*630ord. While an order to break, enter, and steal from the home of a private citizen might be considered palpably illegal and of no consequence in defense of the individual executing its terms, that is not the situation with which we are confronted. In this case, the accused was ordered to remove Government owned property from Government buildings and to deliver it to another Government building for the use of the same Government. To expect him, under such circumstances, to contest the validity of his superior’s command is to place upon the shoulders of a private soldier a most unconscionable burden. Whether or not clemency has been granted him1 the record demonstrates matter in mitigation which is clearly inconsistent with his plea. We should therefore set the plea aside. Code, supra, Article 45; Manual for Courts-Martial, United States, 1951, paragraph 70.
I would reverse the decision of the board of review concerning the Additional Charges of housebreaking and wrongful appropriation and order them dismissed. I would affirm only so much of the findings of guilty as relate to reckless driving, leaving the scene of an accident, and larceny of blankets.