(concurring in the result):
A rule requiring trial judges and appellate courts to enter the factual morass of every drug case to resolve whether multiple charges “are so integrated as to emerge as a single event subject only to a single punishment” is in my view judicially unsound for it provides little, if any, guidance as to what is and is not multiplicious. See United States v. Armstrong, 46 C.M.R. 857, 860 n. 1 (A.C.M.R.1972) (dissenting opinion). The facts of this case provide such an example for never before has the Court squarely held that a serviceman who possesses more of a drug than he attempts to sell is subject only to a single punishment. The facts here clearly cannot be equated to those in United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974), where the accused distributed the same amount of the drug he possessed.
For the benefit of those who must implement our decisions on a daily basis, I would state the rule differently. Absent an expression of congressional intent to the contrary, it is inappropriate to subject an individual to multiple punishment for multiple drug offenses where the drug allegedly distributed, transferred, used, or sold is part or all of the quantum of the drug allegedly possessed. To hold otherwise would subject the individual who transfers only a portion of the drug in his possession to a penalty twice as severe as that applicable to a drug dealer who succeeds in distributing his entire cache. See United States v. Towns, supra.
Since the Court in United States v. Maginley, 13 U.S.C.M.A. 445, 32 C.M.R. 445 (1963), concluded that possession of a drug is not a lesser included offense of a charge alleging a sale of the same drug, it follows that the Double Jeopardy Clause of the Constitution would not bar cumulative trial and punishment for possession and attempted sale charges should the Congress determine that such is appropriate. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). Cf. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). However, absent such an indication, the “presupposition of our law [is] to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.” Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955).