(concurring in the result):
I concur in the result.
I agree with Judge Latimer that the specification in question is sufficient to allege an offense under the Uniform Code of Military Justice, Article 134, 10 USC § 934. We inferentially approved an identical charge in United States v Grosso, 7 USCMA 566, 23 CMR 30. There, the accused was charged with “ ‘wrongfully, wilfully, maliciously, and without justifiable cause, writing and forwarding through the U. S. Mails to the San Francisco Field Office of the Federal Bureau of Investigation, a defamatory statement’ concerning a Navy lieutenant.” United States v Grosso, supra, at page 569. The statement itself was recited in the specification. Here, the identical procedure was followed. While it is true that, in the Grosso case, it was also alleged that the accused’s conduct violated a particular California statute, such is not a governing consideration. The question of sufficiency is determined by an inquiry whether the specification sets forth a violation of Code, supra, Article 134, and not whether it avers conduct prohibited by a state code section. As I noted in my separate opinion in United States v Leach, 7 USCMA 388, 22 CMR 178, at page 404:
. . At no place in the Code is it stated that the violation of a state statute is per se a violation of Article 134, supra. In military law the violation of a state statute may or may not be violative of the Code depending upon whether the acts alleged in violation of the state law are the type which the court could find were ‘disorders and neglects to the prejudice of good order and discipline in the armed forces, or conduct of a nature to bring discredit upon the armed forces.’ ”
I am, however, unable to join in the view that the accused’s sentence is governed by the District of Columbia Code. We have heretofore pointed out that resort may not be had to that enactment for purposes of determining punishment, if an offense closely related to that charged is specifically listed in the Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, United States, 1951. United States v Long, 2 USCMA 60, 6 CMR 60; United States v Blevens, 5 USCMA 480, 18 CMR 104; United States v Mardis, 6 USCMA 624, 20 CMR 340. Indeed, the Manual, supra, expressly so provides, at page 214:
“Offenses not listed in the table, and not included within an offense listed, or not closely related to either, remain punishable as authorized by the United States Code (see, generally, Title 18) or the Code of the District of Columbia, whichever prescribed punishment is the lesser, or *373as authorized by the custom of the service.” [Emphasis supplied.]
This accused was found guilty of wrongfully, willfully, maliciously, and without justifiable cause, communicating to named special agents of the Naval Intelligence a defamatory statement in writing concerning a naval officer in which that officer was accused of committing various acts of sodomy with the accused. While it is not so averred, it appears that the defamatory statement was given to the agents during their conduct of an official investigation into the officer’s activities.
Code, supra, Article 107, 10 USC § 907, inter alia, punishes the making of any false official statement or the signing of any false record, return, regulation, order, or other official document. Accused’s statement was made to official investigators, was in writing, and was apparently false. Accordingly, it appears to be most closely related to the offense of signing a false official document; and the punishment for that offense, rather than the penalty for criminal libel established by the District of Columbia Code, should govern. Manual, supra, paragraph 127c. As stated by the Table of Maximum Punishments, supra, such consists of dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year.
It follows, therefore, that I am able to agree with the ultimate conclusion that the decision of the board of review in this case must be affirmed, for the president of the special court-martial properly limited accused’s possible punishment to bad-conduct discharge, partial forfeitures, and confinement at hard labor for six months. I nonetheless record my differing views concerning the principal opinion’s rationale, for its use of the District of Columbia Code would permit the imposition of five years’ confinement, a very material distinction in the event accused had been tried by general court-martial. Moreover, it is doubtful that resort to the District of Columbia or United States Codes would permit imposition of a punitive discharge. See United States v Varnadore, 9 USCMA 471, 26 CMR 251, and United States v Holt, 9 USCMA 476, 26 CMR 256.