Opinion
Quinn, Chief Judge:On initial review of the accused’s conviction by general court-martial of four offenses, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, we set aside and dismissed, for insufficient evidence to support the findings of guilty, two specifications of alleged pandering. United States v Adams, 18 USCMA 310, 40 CMR 22. Thereafter, the accused petitioned for reconsideration. We granted the petition to consider the applicability of Leary v United States, 395 US 6, 23 L Ed 2d 57, 89 S Ct 1532 (1969), and O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), to the findings of guilty of wrongful possession of marihuana (specification 1 of the charge) and unlawful transfer to another serviceman “not pursuant to a written order” from the transferee as required by 26 USC § 4742 (specification 2 of the charge).
In United States v Beeker, 18 USCMA 563, 40 CMR 275, we determined that wrongful possession of marihuana on or off a military installation is a service-connected act and, therefore, not subject to the constitutional limitation on court-martial jurisdiction explicated in the O’Callahan case. Similarly, in United States v Rose, 19 USCMA 3, 41 CMR 3, we concluded that unauthorized delivery or transfer to another serviceman of dangerous drugs is service-connected within the meaning of the O’Callahan case and was properly triable by court-martial as a violation of the Uniform Code of Military Justice. In each instance, the premise for our decision was that transactions in narcotics, marihuana, and dangerous drugs may, in particular circumstances, be detrimental to the “health, morale and fitness for duty of persons in the armed forces.” United States v Williams, 8 USCMA 325, 327, 24 CMR 135.
Whether an act is prejudicial to good order and discipline in particular circumstances is a question of fact for the court members, and they must be properly instructed they “must find that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” Id., at page 327. Such instructions were given as to the possession charge but not in regard to the wrongful transfer charge. It is apparent, therefore, that whether we disregard the reference to 26 USC § 4742 in the specification as surplusage and treat the offense alleged as conduct to the prejudice of good order and discipline (see United States v Long, 2 USCMA 60, 66, 6 CMR 60), or give effect to the allegation as an essential part of the specification (United States v Rowe, 13 USCMA 302, 32 CMR 302), reversal of the findings of guilty is *77required. As a violation of the transfer provisions of 26 USC § 4742, the wrongful act involves no circumstance to distinguish it as one having military-significance and it would not, therefore, be triable by court-martial. See United States v Beeker, supra. As an offense constituting conduct to the prejudice of good order and discipline, the specification requires appropriate instructions to that effect. United States v Williams, supra. Since reversal is necessary for either of these reasons, it need not be determined whether the certificate of transfer required by 26 USC § 4742 involves self-incrimination as to a transferee under the Leary case.
The decision of the board of review is reversed as to specification 2 of the charge. The record of trial is returned to the Judge Advocate General of the Army for submission to the Court of Military Review. In its discretion, the Court of Military Review may reassess the sentence on the basis of the findings of guilty of specification 1 or order a rehearing by a court-martial on specification 2 and the sentence.