(dissenting):
I dissent.
In United States v Aronson, 8 USCMA 525, 25 CMR 29, a majority of this Oourt held that false statements made during an investigation into an accused’s misconduct, even if uttered with intent to deceive, did not constitute “official” statements within the •meaning of Uniform Code of Military .Justice, Article 107, 10 USC § 907. The rationale upon which that opinion was based is the fact that an accused cannot be compelled to speak officially in view of his rights under Code, supra, Article 31, 10 USC § 831, nor can his misstatements be said to pervert the function of a government investigative agency. In short, a statement made by an accused with relation to his guilt or innocence is not “official” either from his or the Government’s standpoint, within the meaning of Code, supra, Article 107. United States v Washington, 9 USCMA 131, 25 CMR 393; United States v Johnson, 9 USCMA 442, 26 CMR 222; United States v Osborne, 9 USCMA 455, 26 CMR 235; United States v Hairston, 9 USCMA 554, 26 CMR 334; United States v Green, 9 USCMA 728, 26 CMR 508; United States v Thomas, 10 USCMA 54, 27 CMR 128. In United States v Johnson, supra, the accused was a first lieutenant, and we noted pertinently, at page 443:
“This case falls within the Aronson doctrine. An officer is not clothed with any less constitutional and codal rights than is an enlisted person.”
Nevertheless, in the case before us, the Government would have us distinguish the foregoing decisions on the ground that the accused here, ah officer, is charged with conduct unbecoming ah officer and a gentleman, in violation of Code, supra, Article 133,' 10 USC § 933; and that, prior to the trial, allegations relating to the officiality of accused’s statement and the existence of a specific intent to deceive’were deleted from the specification, admittedly on the basis that they were made during an investigation into accused’s misconduct. The author of the principal opinion essentially adopts the Government’s approach. As I am unable to believe that our former holdings may. be. so distinguished, I must record 'my disagreement.
It is elementary in our system of law that a criminal statute denouncing misconduct in specific terms takes precedence over a statute whose general terms would also seem to embrace the same acts. State of Missouri v Ross, 299 US 72, 81 L ed 46, 57 S Ct 60 (1936); Skelton v United States, 88 F2d 599 (CA 10th Cir) (1937). Thus, if the making of false statements not under oath is to be held a violation of Code, supra, Article 133, the allegations of the specification must meet the standards which have been laid down for punishment of false official statements under Code, supra, Article 107. Certainly, those requirements are not met when the allegations of officiality and intent to deceive are expressly eliminated. Moreover, it is clear to me that elements of a specific offense under the Code cannot be deleted and the result made a violation of the general statute relating to officers. See generally, United States v Norris, 2 USCMA 236, 8 CMR 36.
The principal opinion, however, asserts that the element of intent to deceive is substantially pleaded by inclusion of the phrase “wrongfully and dishonorably” in the specification. With that conclusion, I cannot agree, for if *686such be the case, there is no difference between crimes such as the two bad check offenses punishable under Code, supra, Article 134, 10 USC § 934. Both involve the allegation and proof of wrongful and dishonorable conduct, and we have pointed out that the major distinction between the two offenses is, with respect to the greater, the averment and proof of the specific intent to deceive. United States v Downard, 6 USCMA 538, 20 CMR 254; United States v Lightfoot, 7 USCMA 686, 23 CMR 150. Indeed, in the latter case, Judge Latimer noted in his separate concurring opinion, at page 688:
“. . . [I] t was necessary for the prosecution to plead and prove, inter alia, that he intended to deceive, and that he dishonorably failed to maintain sufficient funds in the bank. . . .” [Emphasis partially supplied.]
Thus, it is clear to me that the words “wrongfully and dishonorably” do not have the effect for which my brothers contend. Additionally, I note that there is no allegation here that accused’s statement was official. It is difficult for me to perceive the manner in which the specification can be held sufficient lacking averment of these necessary elements.
Finally, the principal opinion relies upon language quoted from this Court’s holding in United States v Gomes, 3 USCMA 232, 11 CMR 232, in order to sustain the view of the board of review. At the outset, I point out that the Gomes decision is readily distinguishable, for the specification there alleged the specific intent to deceive. Moreover, we were not there concerned with a violation of the Uniform Code of Military Justice but with other legislation governing the Coast Guard, now repealed. Finally, much of the language in Gomes, supra, lost vitality by our decision in United States v Aronson and the other cases cited, supra. I am, therefore, at a loss to find how Gomes may be utilized as an authoritative precedent unless we are now to reverse our later, oft-repeated holdings that false statements in official criminal investigations do not constitute violations of the Code.
In sum, then, my position is that accused’s offense, if any, must remain the same whether pleaded as a violation of Code, supra, Article 107, or Article 133. His punishment cannot be accomplished simply by changing the number of the Article in the Charge, omission of all reference to the making of a false official statement with intent to deceive, and substitution of the words “wrongfully and dishonorably.” False, unsworn statements in violation of Article 133 must also meet the requirements of Article 107. In like manner, the allegations of the count must set forth the elements of that crime. The specific statute involved must be held to control. Skelton v United States, supra. Accordingly, I would hold that the specification in question does not allege an offense.
I would reverse the decision of the board of review and order the Charge dismissed.