(dissenting):
I dissent.
My brothers hold that the Court of Military Review erred in its application of this Court’s opinion in United States v Harvey, 19 USCMA 539, 42 CMR 141 (1970), to the case at bar. They believe that the “totality of the instructions” avoids the prejudicial effect of the inadequate definition, by the military judge, of the word disloyalty. I disagree.
*67In this case, as in Harvey, the military judge defined the word disloyalty as meaning
. . not being true to or not being faithful to an authority to whom respect, obedience, or allegiance is due.” . [Emphasis supplied.]
The emphasized portion of the above instruction is precisely what we held in Harvey to be prejudicially inadequate, standing alone, because:
“. . . There was no instruction that the authority to whom allegiance was due was the United States, not the Marine Corps or other department of Government. . . .” \lbid., at page 544.]
It cannot be said that the inadequate instruction was not important to conviction for one of the essential elements of the offenses of which the accused was convicted was that the pamphlet, described in each of the spiecifications, “taken in its entirety, is disloyal to the United States.” Nor can it be said that defense counsel acquiesced in the inadequacy for, as the Court of Military Review observed in its opinion:
“The infirmity in the instructions is emphasized by a requested defense instruction which the military judge refused to give. The requested instruction was:
‘The disloyalty charged here is to the United States and not disloyalty to any other person or institution such as the Secretary of Defense or the United States Navy.’ (Defense requested instruction 16)
“In refusing the instruction, the military judge stated f
Tm going to sustain the objection to 16. Clearly the elements show that the disloyalty is to the United States. But the United States certainly includes its various departments or subdivisions’ (Italics added.)
“The italicized sentence clearly shows the military judge’s misunderstanding of the offense as subsequently defined by the United States Court of Military Appeals. The military judge demonstrated that in his opinion disloyalty to an authority of the United States is equivalent to disloyalty to the United States.”
Since, as the Court of Military Review rightly concluded, the military judge misunderstood the need for additional instructions with regard to the definition of the term disloyal, it seems quite unlikely that the members of the court, not being lawyers, would have any better understanding of the issue. Absent the requested instruction, prejudicial error occurred. United States v Harvey, supra.
My opinion, with regard to the lack of understanding of the court members, is buttressed by the fact that despite the denial of the request to instruct, defense counsel vigorously argued before the court:
“Now, what are the elements which you must find beyond a reasonable doubt and which the government must give you proof beyond a reasonable doubt with respect to these allegations? Now, the first element you must consider — and I turn to the very end of the Charge, and that is the Charge' stating, with regard to each of these specifications, that they contain statements —that the pamphlets in their entirety contain statements disloyal to the United States. And I ask you when you begin your considerations, to direct yourselves to that portion of the specification first because if you do not find that it contained statements disloyal to the United States, then you can ignore the rest of the specifications and you need not consider the other requirements of the specification. Let me emphasize to you what the specification says. It says ‘disloyal to the United States’. It does not say, ‘disloyal to the navy’; it does not say ‘disloyal to President Nixon’; it does not say ‘disloyal to the Secretary of Defense’; it does not say ‘disloyal to *68the Chairman of the House Armed Services Committee.’ It says ‘disloyal to the United States’ and that is [on] what you must concentrate your attention.”
This portion of defense counsel’s argument correctly stated the law (United States v Harvey, supra); it was the core of his defense that the statements were not disloyal to the United States. Without the requested instruction, the court members were deprived of the necessary “lucid guideposts” to enable them to “knowledgeably apply the law to the facts as they find them.” United States v Smith, 13 USCMA 471, 474, 33 CMR 3 (1963). See also United States v Jones, 13 USCMA 635, 33 CMR 167 (1963); United States v Tanner, 14 USCMA 447, 34 CMR 227 (1964). Without the proper guidance, the court was at liberty to reject the ar-gunment of counsel, correct though it was, as not being the law. At the very least, there is room for reasonable doubt and, as Chief Judge Quinn wrote in his separate opinion in United States v McIntosh, 12 USCMA 474, 477, 31 CMR 60 (1961), “Doubtful instructions must be resolved in favor of the accused.” (Emphasis supplied.)
The striking similarities between the allegations and findings in this case and in Harvey further reflect, in my opinion, the correctness of the Court of Military Review’s application herein of the Harvey holding. Both Harvey and Priest were charged with conducting certain activities with the intent to interfere with, impair, and influence the loyalty, morale, and discipline of a member or members of the armed forces, in violation of section 2387, Title 18, United States Code. Each was acquitted of these specific allegations by the court which tried them but convicted, on the basis of the same evidence, of the lesser included offense of making statements disloyal to the United States. Under such circumstances, the failure of the military judge to fully inform the court members of the meaning of the term disloyalty to the United States, as required by Harvey, is especially critical.
The certified question asks whether the Court of Military Review was correct in its determination that the instructions given by the military judge on the meaning of the term disloyalty were prejudicially inadequate. I would answer the certified question in the affirmative.