Opinion of the Court
Ferguson, Judge:The accused was convicted by general court-martial, convened at Luzon, Republic of the Philippines, of one specification each of willful damage to military property of the United States by burning and simple arson, in violation of Articles 108 and 126, Uniform Code of Military Justice, 10 USC §§ 908 and 926, respectively. The res of the two specifications was the same— an SP-2H aircraft, located at the Naval Air Station, Whidbey Island, Washington. Since the charges and specifications were multiplicious for purpose of sentencing, the law officer, following the return of findings by the court, dismissed that which alleged damage to Government property. The accused’s sentence, as his petition reaches this Court, extends to a bad-conduct discharge, confinement at hard labor for two years, forfeiture of $109-.00 per month for a like period, and reduction to the grade of E-l. We granted review on the following questions :
1. Whether the law officer erred to the prejudice of the accused by failing to instruct the court-martial on the effect of intoxication upon the element of willfulness and maliciousness involved in simple arson.
2. Whether the law officer cor*298rectly advised the accused of his right to counsel pursuant to Article 38(b), Uniform Code of Military Justice, 10 USC § 838.
Government counsel concede that voluntary intoxication not amounting to legal insanity may constitute a defense to a crime requiring a specific intent. United States v Ferguson, 17 USCMA 441, 38 CMR 239 (1968); paragraph 154a (3), Manual for Courts-Martial, United States, 1969 (Revised edition). If raised by the evidence, the issue of voluntary intoxication on the specific intent element of the offense would be one to be decided by the triers of fact. United States v Lewis, 14 USCMA 79, 33 CMR 291 (1963). As stated in their brief, “the sole issue before this Honorable Court in this case is whether simple arson, as defined by the Code, is a specific intent offense by virtue of the requirement that the burning be ‘willful and malicious.’ ” Since simple arson requires only a general criminal intent, they argue, there was no need for the law officer to instruct on the effect thereon of the accused’s intoxication.
Defense counsel assert, in their brief, that “ ‘willfully and maliciously’ as used in Article 126(b) means intentionally setting a fire or burning with the specific purpose or premeditation to burn the property of another, without just cause or excuse. . . . Thus it is contended that simple arson requires the specific intent to burn.”
Article 126(b), Code, supra, defines simple arson as follows:
“(b) Any person subject to this chapter who willfully and maliciously burns or sets fire to the property of another, except as provided in subsection (a) [aggravated arson], is guilty of simple arson and shall be punished as a court-martial may direct.” [Emphasis supplied.]
In the discussion of simple arson, the Manual, supra, 1969 (Revised edition), provides:
“6. SIMPLE ARSON
“Discussion. Simple arson is the willful and malicious burning or setting fire to the property of another under circumstances not amounting to aggravated arson.
“The offense includes burning or setting fire to real or personal property of someone other than the offender and, as in aggravated arson, it must be shown that the accused set the fire willfully and maliciously.
“Proof. (a) That the accused burned or set fire to certain property of another, as alleged; (b) that the property was of the value alleged, or of some value; and (c) that the act was willful and malicious.”
Military law, previous to the Uniform Code, defined arson in common-law terms. United States v Duke, 16 USCMA 460, 37 CMR 80 (1966). Winthrop, in his Military Law and Precedents, 2d ed, 1920 Reprint, page 681, states with regard to arson :
“The intent. The burning must be malicious, that is to say committed with a criminal or felonious intent.”
In United States v Krosky, 418 F2d 65, 67 (CA 6th Cir) (1969), the court defined “willfully” as follows:
“An act is done ‘willfully’ if done voluntarily and purposely with the specific intent to do that which the law forbids; that is to say, with bad purpose either to disobey or to disregard the law. Willfulness includes an evil motive. James v United States, 366 US 213, 81 S Ct 1052, 6 L Ed 2d 246 (1961).” [Emphasis supplied.]
Of particular importance to the question before us is our holding in United States v Groves, 2 USCMA 541, 10 CMR 39 (1953). Groves was charged, among other offenses, with “willfully damaging military property” under Article 108, Code, supra. The record was replete with evidence that Groves was deeply intoxicated at the time of the commission of the charged offense. Finding that specific intent was an element of the offense of willful damage to military property, we reversed his conviction for that offense because the law officer gave no instruction to the *299court as to the possible legal effect of intoxication upon Groves’ ability to entertain a specific intent.
This accused, too, was charged with “willfully damaging, by setting fire to, an SP-2H aircraft . . . military property of the United States,” in violation of Article 108, Code, supra. His conviction thereunder was, as noted above, set aside by the law officer because this offense merged with that which alleged the act of simple arson with relation to the same aircraft. In each instance, the Code requires that the act be done “willfully.”
It would be anomalous were we to hold, as we would have to, that an instruction on intoxication would have been necessary had the accused remained convicted of the Article 108 offense (United States v Groves, supra) and to hold to the contrary with regard to the same offense, simply because it was also charged as simple arson, where the element of willfulness is essential for conviction of either offense.
We hold, therefore, that intoxication having been raised by the evidence, it was error, prejudicial to the substantial rights of the accused, for the law officer to fail to instruct on the affirmative defense of intoxication. United States v Groves, supra; United States v Meador, 18 USCMA 91, 39 CMR 91 (1969).
The second granted issue questions whether the law officer correctly advised the accused of his right to counsel, pursuant to Article 38(b), Code, supra. The record reflects that while the law officer advised Greene of his right to retain civilian or military counsel of his own selection, he did not inform him that in the event he made such a selection appointed defense counsel would act as associate counsel if Greene so desired.
In United States v Turner, 20 USCMA 167, 43 CMR 7 (1970), a majority of this Court held that this omission was not error, inasmuch as the total advice and inquiry by the law officer relative to the accused’s knowledge and understanding of his entitlement to counsel satisfied the basic objectives of United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969). While I dissented in Turner and related cases, I now accept this determination as the law of this Court.
The decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered.
Chief Judge Qtjinn concurs.