(concurring in the result) :
I concur in the result.
I agree with my brothers that wrongful possession of marihuana by a serviceman, whether on or off base, is “service connected” within the meaning of O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), and, hence, triable by court-martial. United States v Beeker, 18 USCMA 563, 40 CMR 275. Cf. United States v Rose, 19 USCMA 3, 41 CMR 3. I also agree with the Chief Judge’s disposition of the' second issue but not with the means by which he reaches that result. In that regard, my brother Darden and I are in agreement that since the specification alleging the unlawful transfer of marihuana to another was laid under that portion of Article 134 of the Code relating to crimes and offenses not capital, the law officer was not obligated to instruct the court that, in order to convict, it must find that the charged offense was prejudicial to good order and discipline within the service. That factor is simply not an element of the charged offense and can play no part in the court’s consideration. See my separate opinion in United States v Hallahan, 19 USCMA 46, 41 CMR 46. My agreement ends there, however, for I believe that the accused’s conviction under specification 2 must be reversed. Leary v United States, 395 US 6, 23 L Ed 2d 57, 89 S Ct 1532 (1969); United States v Covington, 395 US 57, 23 L Ed 2d 94, 89 S Ct 1559 (1969).
The accused was charged under specification 2 of the charge (Article 134) with having unlawfully transferred marihuana to another serviceman, “which transfer was not pursuant to a written order,” in violation of Title 26, §4742, United States Code.
Section 4742 provides in pertinent part as follows:
“(a) General requirement.
“It shall be unlawful for any person, whether or not required to pay a special tax and register under sections 4751 to 4753, inclusive, to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.
“(c) Supply.
“The Secretary or his delegate shall cause suitable forms to be prepared for the purposes mentioned in this section and shall cause them to be distributed to each internal revenue district for sale. The price at which such forms shall be sold shall be fixed by the Secretary or his delegate, but shall not exceed 2 cents each. Whenever any of such forms are sold, the Secretary or his delegate shall cause the date of sale, the name and address of the proposed vendor, the name and address of the purchaser, and the amount of marihuana order to be plainly written or stamped thereon before delivering the same.
“(d) Preservation.
“Each such order form sold by the Secretary or his delegate shall *79be prepared to include an original and two copies, any one of which shall be admissible in evidence as an original. The original and one copy shall be given to the purchaser thereof. The original shall in turn be given by the purchaser thereof to any person who shall, in pursuance thereof, transfer marihuana to him and shall be preserved by such person for a period of 2 years so as to be readily accessible for inspection by an officer or employee mentioned in section 4773. The copy given to the purchaser shall be retained by the purchaser and preserved for a period of 2 years so as to be readily accessible to inspection by any officer or employee mentioned in section 4773. The second copy shall be preserved in the records of the internal revenue district.”1
Timothy Leary was convicted in Federal District Court for the Southern District of Texas of having transported, concealed, and facilitated the transportation of marihuana without having paid the transfer tax imposed by the Marihuana Tax Act, 26 USC § 4741, et seq., thereby violating 26 USC § 4744(a) (2). Insofar as here relevant, 26 USC § 4744(a) provides: . . It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741(a) —
(1) to acquire or otherwise obtain any marihuana without having paid such tax, or
(2) to transport or conceal, or in any manner facilitate the transportation or concealment of, any marihuana so acquired or obtained.”
The Supreme Court granted certiorari in Leary’s case to determine whether his conviction for failure to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination. Referring to its prior holdings in Marchetti v United States, 390 US 39, 19 L Ed 2d 889, 88 S Ct 697 (1968); Grosso v United States, 390 US 62, 19 L Ed 2d 906, 88 S Ct 709 (1968); and Haynes v United States, 390 US 85, 19 L Ed 2d 923, 88 S Ct 722 (1968), the Court answered the question in the affirmative and reversed outright Leary’s conviction of this charge. As the Court said in 395 US, at pages 16-18:
“If read according to its terms, the Marihuana Tax Act compelled petitioner to expose himself to a *80'real and appreciable’ risk of self-incrimination, within the meaning of our decisions in Marchetti, Grosso, and Haynes, Sections 4741-4742 required him, in the course of obtaining an order form, to identify himself not only as a transferee of marihuana but as a transferee who had not registered and paid the occupational tax under §§ 4751-4753. Section 4773 directed that this information be conveyed by the Internal Revenue Service to state and local law enforcement officials on request.
“Petitioner had ample reason to fear that transmittal to such officials of the fact that he was a recent, unregistered transferee of marihuana. ‘would surely prove a significant “link in a chain” of evidence tending to establish his guilt’ under the state marihuana laws then in effect. When petitioner failed to comply with the Act, in late 1965, possession of any quantity of marihuana was apparently a crime in every one of the 50 States, including New York, where petitioner claimed the transfer occurred, and Texas, where he was arrested and convicted. It is true that almost all States, including New York and Texas, had exceptions making lawful, under specified conditions, possession of marihuana by: (1) state-licensed manufacturers and wholesalers; (2) apothecaries; (3) researchers; (4) physicians, dentists, veterinarians, and certain other medical personnel; (5) agents or employees of the foregoing persons or common carriers; (6) persons for whom the drug had been prescribed or to whom it had been given by an authorized medical person; and (7) certain public officials. However, individuals in the first four of these classes are among those compelled to register and pay the occupational tax under §§ 4751-4753; in consequence of having registered, they are required to pay only a $1 per ounce transfer tax under § 4741(a) (1). It is extremely unlikely that such persons will remain unregistered, for failure to register renders them liable not only to an additional $99 per ounce transfer tax but also to severe criminal penalties. Persons in the last three classes mentioned above appear to be wholly exempt from the order form and transfer tax requirements.
“Thus, at the time petitioner failed to comply with the Act those persons who might legally possess marihuana under state law were virtually certain either to be registered under § 4753 or to be exempt from the order form requirement. It follows that the class of possessors who were both unregistered and obliged to obtain an order form constituted a ‘selective group inherently suspect of criminal activities.’ Since compliance with the transfer tax provisions would have required petitioner unmistakably to identify himself as a member of this ‘selective’ and ‘suspect’ group, we can only decide that when read according to their terms these provisions created a ‘real and appreciable’ hazard of incrimination.”
Covington, a companion case to Leary, was charged by Federal indictment in the Southern District of Ohio, with having violated 26 USC § 4744(a)(1) by obtaining a quantity of marihuana without having paid the transfer tax imposed by 26 USC § 4741 (a). On his motion, the District Court dismissed the indictment, holding that under principles established in Marehetti, Grosso, and Haynes, Covington’s privilege against self-incrimination would provide a complete defense to the prosecution. Upon appeal by the Government, the Supreme Court upheld the action of the lower court, citing its decisions in Leary and Marehetti.
I find no significant difference be tween these cases and the case at bar. It is true, as Judge Darden, in announcing that he would affirm this conviction, points out, the obligation to obtain the order form is placed by law on the transferee. The trans*81feree, however, must, at the same time, divulge the identity of the person from whom he intends to make the purchase (the transferor) and both are required to retain for inspection either the original or a copy of said form. The transferor’s interest therein is obviously sufficient to give him standing to assert his constitutional prerogative. Cf. Jones v United States, 362 US 257, 4 L Ed 2d 697, 80 S Ct 725, 78 ALR2d 233 (1960); United States v Garlich, 15 USCMA 362, 35 CMR 334. I find support for my view by the fact that 26 USC § 4741(b) provides that “in the event that the transfer is made in violation of section 4742 without an order form and without payment of the transfer tax imposed by this section, the transferor shall also be liable for such tax.” (Emphasis supplied.) Sections 4741 and 4742 cannot be read and interpreted in a vacuum.
Accordingly, I concur in the result reached by Chief Judge Quinn. I, too, would reverse the decision of the board of review as to specification 2 of the charge, set aside the sentence and direct that the Court of Military Review may reassess the sentence on the basis of the finding of guilty of specification 1 or order a rehearing by a court-martial on specification 2 and the sentence.
“§ 4773. Inspection of returns, «order forms, and prescriptions.
“The duplicate order forms and the prescriptions, including the written record of oral prescriptions, required to be preserved under the provisions of section 4705(c) (2) and (e), and the order forms and copies thereof and the prescriptions and records required to be preserved under the provisions of section 4742, in addition to the statements or returns filed in the «office of the official in charge of the Internal revenue district under the provisions of sections 4732(b) or 4754, shall be open to inspection by officers ,and employees of the Treasury Department duly authorized for that purpose, and such officials of any ¡State or Territory, or of any organized municipality therein, or of the District of Columbia, or any insular possession of the United States, as shall ¡be charged with the enforcement of any law or municipal ordinance regulating the production of marihuana or regulating_ the sale, prescribing, dispensing, dealing in, or distribution of narcotic drugs or marihuana. The Secretary or his delegate is authorized to furnish, upon written request, certified copies of any of the said statements or returns filed in the office of any official in charge of an internal revenue district to any of such officials of any State or Territory or organized municipality therein, or the District of Columbia, or any insular possession of the United States as shall be entitled to inspect the said statements or returns filed in the office of the official in charge of the internal revenue district, upon the payment of a fee of $1 for each 100 words or fraction thereof in the copy or copies so requested. (Aug. 16, 1954, ch. 736, 68A Stat 567; Aug. 31, 1954, ch. 1147, §9, 68 Stat 1004.)”