(concurring in part and dissenting in part):
This Court initially granted review on the question “whether the evidence is insufficient to convict the appellant of . . .a failure to obey an order to obtain a haircut in accordance with Army Regulations as explained by Lieutenant Colonel Weight since the appellant did obtain a haircut [and] the standards explained were different than those stated by the Army Regulation and were wholly subjective.” We later enlarged the granted issue and requested additional briefs and argument on the question “whether military necessity justifies the need for military regulations governing the length and style of a service person’s hair or whether such regulations are an invasion of his personal rights.”
With regard to the constitutional challenge lodged against the haircut regulation, I concur in the principal opinion’s resolution of the question. See Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976). I also am in agreement with the majority that all of the findings must be set aside and a rehearing authorized because of the erroneous advice given the accused regarding his rights to counsel. United States v. Anastasio, 1 M.J. 198 (1975); United States v. Copes, 23 U.S.C.M.A. 578, 50 C.M.R. 843, 1 M.J. 182 (1975).
I cannot support the Court’s dismissal of the haircut offense on grounds that the evidence of record is legally insufficient. Inasmuch as Colonel Weight sought only to have Private Young get his hair cut in accordance with Army regulations, it is immaterial whether Colonel Weight’s interpretation of the regulation was more restrictive than the actual language of the regulation if the accused’s action nevertheless violated both the order and the regulation. The “ultimate offense” charged was a violation of the regulation and, as acknowledged by the appellant, “an order to *438obey the law can have no validity beyond the limit of the ultimate offense committed.” See United States v. Wartsbaugh, 21 U.S.C.M.A. 535, 540, 45 C.M.R. 309, 314 (1972); United States v. Bratcher, 18 U.S.C.M.A. 125, 128, 39 C.M.R. 125, 128 (1969). Appellate defense counsel further concede that the accused’s conviction can stand so long as it is shown “that his haircut was not in accord with the haircut regulation, per se, without erroneous interpretation.”
Colonel Weight’s testimony, if believed, indicates that when he ordered the accused to get a haircut, the hair “standing on the top of [the accused’s] head . . . [was] about four inches [high].” When he encountered Private Young 4 days after the date he had set for the accused to get a haircut, Colonel Weight testified:
The hair on the top of his head was still about four inches high, very excessive in appearance and extreme and the hair on the side and in the back was still not tapered in accordance with instructions which I had given him.
Whether the hairstyles illustrated in figure 5-1 of Army Regulation 600-20 (June 12, 1974) permit the wearing of hair in excess of 2 inches in height on the top of the head may be subject to debate; however, there can be no question that hair “four inches high” on the top of the head does not conform to the regulation. Since this Court has no fact-finding power in a situation such as this, the testimony of Colonel Weight with regard to the height of Private Young’s hair must be accepted as credible in assessing the legal sufficiency of the evidence. United States v. McCrary, 1 U.S.C.M.A. 1, 1 C.M.R. 1 (1951). Applying that standard, I find no legal basis upon which to conclude that the evidence with regard to the haircut offense is insufficient.