(dissenting):
On constitutional and statutory grounds, and on prior opinions of this Court, I disagree with the majority opinion.
Assuming that Army Regulation 600-50 has the same force and consequence as an article of the Uniform Code of Military Justice, an assumption implicit in the majority opinion but explicitly rejected in United States v. Walter, 20 U.S.C.M.A. 367, 43 C.M.R. 207 (1971), it does not follow that an accused whose conduct violates both the regulation and Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, is denied equal protection of the law because he is prosecuted for a violation of the article rather than for disobeying the regulation in contravention of Article 92(1), UCMJ, 10 U.S.C. § 892(1). When two statutes prohibit the same conduct but prescribe different punishments, the accused has no right to compel the government to prosecute under the statute providing for the lesser penalty. In Deutsch v. Aderhold, 80 F.2d 677, 678 (5th Cir. 1935), the court stated the rule as follows:
The United States attorney of the district where a violation of a federal statute occurs is charged with the duty of prosecution and vested with complete control over the proceedings, in the exercise of sound discretion. If the facts show a violation of two or more statutes, he may elect under which he will prosecute, in the absence of a prohibitory statute.
More recently, the constitutional validity of prosecutorial discretion in the choice of a statute upon which prosecution of an accused’s misconduct would proceed was considered by the Court of Appeals for the District of Columbia in Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964 (1965), cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965). The court held that, as to an offense committed in the *443District of Columbia, due process of law, which in a federal context includes equal protection, is not violated when the Government elects to prosecute under a Federal statute rather than an identical District of Columbia law, notwithstanding that the punishment prescribed by the latter is much less than that provided by the former. In part, the court said:1
A defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution. That choice is to be made by the United States Attorney.
In terms of the exercise of sovereign authority, the situation in Hutcherson is analogous to that present here. The Army regulation, which governs only those subject to its authority, is the equivalent of a penal statute of the District of Columbia, and, in each instance, promulgation of a provision covering the same subject matter of an existing statute of the United States does not supersede that statute. As Hutcherson indicates, the two provisions coexist and an individual subject to both can be prosecuted for violation of one or the other, not as he chooses, but as the government elects.2
In Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), the Supreme Court upheld a conviction under a felony statute providing for confinement for 5 years, notwithstanding the same conduct violated another statute, described as a misdemeanor, which proscribed the same conduct and provided for confinement not to exceed 1 year. When a member of the Court of Appeals for the District of Columbia Circuit, Chief Justice Burger commented on the significance of Berra as it affected the scope of prosecutorial discretion in the choice of statutes upon which to prosecute for particular misconduct. He perceived the majority opinion as rejecting the idea advanced in the dissent in Berra that it is incompatible with the system of justice guaranteed by the Constitution to allow the Government, when confronted with two “ ‘functionally equivalent’ ” statutes, to elect to prosecute upon the one that carries the more severe penalty. Hutcherson v. United States, supra, 345 F.2d at 969 (concurring opinion). In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed. 446 (1962), the petitioner alleged denial of equal protection of the law in the imposition upon him of a life sentence under an habitual offender statute because, in a 15-year period, he was the only one of those subject to the statute as to whom the state prosecutors had invoked the statute. Rejecting the argument, the Supreme Court said:3
[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged.
Aside from the prosecutor’s utilization of a constitutionally unjustifiable standard, such as race or creed, “no court has any jurisdiction to inquire into or review his decision” as to whether, or on what basis, to prosecute an alleged crime. Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479, 482 (1967). As to the specific situation presented here, there is “no constitutional objection to giving the . [government] an option as to what crime . [it] will prosecute for a conviction where a given set of facts permits a *444choice.” Minkin v. United States, 383 F.2d 427, 428 (9th Cir. 1967). The American Bar Association has formulated certain guidelines for the exercise of the decision to charge, but it has conceded that by “its very nature the exercise of discretion cannot be reduced to a formula.” ABA Standards, The Prosecution Function and the Defense Function 93 § 3.9 (Approved Draft 1971). On the record before us, the choice between charging the accused with a violation of the Army regulation or proceeding against him under Article 134, UCMJ, was, in my opinion, constitutionally valid.4
My second reason for disagreeing with the majority is that, in my opinion, the result it reaches is contrary to the concept and the letter of the Uniform Code. Earlier, for the purpose of meeting the majority’s constitutional contention, I assumed that AR 600-50 was the equivalent of a punitive article of the UCMJ; actually, they are not the same. As this Court pointed out in Walter, a “regulation which merely enjoins conduct already imposed upon the individual by law is substantially an order to obey the law and, as such, has no effect on the ‘limit [of punishment] of the ultimate offense committed.’ ” 20 U.S.C.M.A. at 371, 43 C.M.R. at 211.
The Uniform Code empowers the President to prescribe maximum limits of punishment for all military offenses except those as to which the article, itself, fixes the penalty. He has done so in the table of maximum punishments and other provisions of the Manual for Courts-Martial, United States, 1969 (Rev.). The Uniform Code has also invested competent court-martial authorities with discretionary powers over the disposition of criminal charges and the punishment for violations of the punitive provisions of the Code that are so plenary and so expansive as to transcend the discretion allowed prosecutors in the civilian community. See United States v. Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). For present purposes, suffice it to note that a competent court-martial authority can, in a number of different ways, lessen the punishment prescribed by the President for a particular offense. For example, except in a death case, by a stroke of the pen, the court-martial authority can affect the punishment to which the accused may be subject by referring the charge to a court-martial that has no statutory authority to impose a penalty of the magnitude authorized by the President. Thus, a charge such as housebreaking or grand larceny, for which the punishment provided by the President includes a dishonorable discharge and confinement at hard labor for 5 years, can be referred to a special court-martial for trial; because the special court-martial has power to impose only a bad-conduct discharge, not a dishonorable discharge, and confinement at hard labor not in excess of 6 months, the maximum punishment to which the accused is subject is materially less than that provided in the table of maximum punishments. In such instances, the result is achieved by affirmative action by the court-martial authority in a particular case. As Walter points out, a regulation prohibiting conduct already enjoined by the Uniform Code does not, itself, automatically reduce the penalty prescribed by the President for a specified offense. I agree with what the Court said on the subject in Walter.5
As we have seen, the punishment provision for violation of an order or regulation does not increase the penalty if the Table lists a lesser penalty for the same *445misconduct. Similarly, the mere existence of a general order or regulation cannot decrease the punishment expressly provided in the Table for the same misconduct. To illustrate, let us suppose a general order defining the conduct of trainees directs that they obey the orders of their commissioned officers. Willful disobedience of an order of an officer by a trainee would violate the order, but it also violates Article 90, Code, supra, 10 U.S.C. § 890, which is listed to the Table; if convicted of the latter offense, the accused is subject to the maximum punishment provided for Article 90, which includes confinement for five years, notwithstanding the existence of the general order and the two years confinement limit provided in the Table for violation thereof. Inapplicability of the penalty listed for an Article 92 offense in both situations results from the fact that, in the absence of special circumstances (see United States v. Yunque-Burgos, 3 U.S.C.M.A. 498, 13 C.M.R. 54 (1953); United States v. Loos, 4 U.S.C.M.A. 478, 16 C.M.R. 52 (1954)), an order or regulation which merely enjoins conduct already imposed upon the individual by law is substantially an order to obey the law and, as such, has no effect on the “limit [of punishment] of the ultimate offense committed.” United States v. Bratcher, 18 U.S.C.M.A. 125, 128, 39 C.M.R. 125 (1969); see also United States v. Renton. Thus, all military accused violating the same statute are subject to the penalty listed in the Table for that offense, regardless of the accidental circumstance that a particular service or command has promulgated a general order or regulation proscribing the same conduct as the statute.
From the standpoint both of civilian and military law regarding the scope of prosecutorial discretion in the choice of a statute for the prosecution of particular misconduct by an accused and the relationship between a general order or regulation which enjoins conduct that is already proscribed by the Uniform Code and for which the President has provided a penalty, I perceive no violation of the Constitution or the Code in treating the accused’s wrongful possession of marihuana as a violation of Article 134, rather than as a violation of AR 600-50 in contravention of Article 92. I would, therefore, affirm the decision of the United States Army Court of Military Review.
. Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964 (1965), cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965). See also United States v. Jones, 170 U.S.App.D.C. 362, 517 F.2d 176, 182-83 (1975).
. It is important to note that as prosecution can be only for violation of one or the other of the applicable statutes, no question of double jeopardy by the same sovereign is involved. See United States v. Shepard, 169 U.S.App.D.C. 353, 515 F.2d 1324 (1975).
. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed. 446 (1962). See also Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479, 481 (1967).
. It should be noted that the prosecutorial function in the military in regard to selection of charges against an accused, which is discussed in the text, is not the responsibility of the individual who represents the Government in the courtroom. Trial counsel presents the Government’s case before the court-martial, but his authority does not include the power to determine whether charges should be referred to trial or which of the three courts-martial provided for by the Uniform Code should try the case. Those powers and others comprehended within the concept of prosecutorial discretion, as it is construed in the civilian community, are vested by the Uniform Code of Military Justice in authorities empowered to convene courts-martial. See United States v. Kirsch, 15 U.S.C.M.A. 84, 91-93, 35 C.M.R. 56, 63-65 (1964); United States v. Hawthorne, 7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956).
. 20 U.S.C.M.A. at 371, 43 C.M.R. at 211.