(concurring in the result):
I could safely rest my concurrence here upon my dissent in United States v. Hedlund, 2 M.J. 11 (1976). However, the majority’s apparent rejection of the treatment accorded an offense by the civilian com*30munity as a factor in determining the triability of the offense by a court-martial impels me to comment further on the matter than I did in my Hedlund dissent.
In the years since 1969, many states have revised their law and practice in regard to controlled substances, especially marihuana. Kentucky, which is one of the states “outside” Fort Campbell, now provides that possession of marihuana for personal use is punishable by confinement in the county jail for not more than 90 days and by a fine not in excess of $250.1 The punishment is such that an accused has no right to trial by jury under the United States Constitution. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Further, the United States Constitution does not require the states to prosecute an offense by indictment of a grand jury. Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). As “preservpng] . . . [the] two important constitutional guarantees” of indictment by grand jury and trial by petit jury was the predicate perceived in O’Callahan v. Parker for the limitation on the exercise of court-martial jurisdiction,2 under the maxim cessante ratione legis, cessat et ipsa lex [the reason of the law ceasing, the law itself also ceases],3 the unavailability of those rights in state prosecutions eliminates the cognizability of the offense in the state courts as a bar to trial by court-martial. United States v. Sharkey, 19 U.S.C.M.A. 26, 41 C.M.R. 26 (1969). Of course, account must still be taken of the cognizability of the offense in a Federal civilian criminal court.
Federal law on controlled substances has also changed since O’Callahan. Under current law, simple unauthorized possession of a controlled substance is punishable by imprisonment for not more than 1 year and a fine of not more than $5,0004 An offense of that kind can constitutionally be prosecuted on information.5 As to a possession offense, therefore, the guarantee-of-indictment justification for the bar to trial by court-martial may not exist. Similarly, as a court-martial trial is now conducted, the court members are, arguably, the functional equivalents of the jurors in a civilian criminal trial, especially since the Supreme Court has held, subsequent to O’Callahan, that, in constitutional terms, there is no magic in numbers so that a criminal court jury may consist of less than the customary 12 members; 6 consequently, the jury right prong of the O’Callahan limitation may also be inoperative. Resultantly, Federal civilian court cognizability of the kind that would bar a court-martial trial within the O’Callahan formula may not be involved in certain violations of the military law on controlled substances, either from the standpoint of unavailability of the constitutional guarantees in the civilian courts, as indicated above, or from the standpoint of the substantial discrepancies in punishment between the civilian penalties and those provided by military law.
In Relford v. Commandant, 401 U.S. 355, 367-68, 91 S.Ct. 649, 656, 28 L.Ed.2d 102 (1971), the Supreme Court observed that military significance sufficient to justify the exercise of court-martial jurisdiction may inhere in an offense when there is a “distinct possibility that civil courts, particularly nonfederal courts, will have less than complete interest, concern, and capacity for *31all the cases that vindicate the military’s disciplinary authority within its own community.” Civilian disinclination to prosecute even large-scale public violations of controlled substances laws, such as those occurring at rock concerts and certain athletic contests, or extreme leniency in punishment, has a natural tendency to foster disregard of, and even contempt for, the military prohibitions. The tendency is necessarily strengthened when the prohibited conduct can be safely indulged in civilian sanctuaries just outside the military installation. Although the Supreme Court eschewed a decision on the merits in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), it made several observations that are relevant here. Specifically, it took note of the Solicitor General’s statement as to the “nature and magnitude”7 of the drug abuse problem in the military community, and it remarked that a military court can properly consider whether “the military interest in deterring the offense is distinct from and greater than that of civilian society, and whether the distinct military interest can be vindicated adequately in civilian courts.”8
. Ky.Rev.Stat. 218A. 990(7).
. O’Callahan v. Parker, 395 U.S. 258, 273, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).
. Black’s Law Dictionary 288 (rev. 4th ed. 1968).
. 21 U.S.C. § 844(a).
. Fed.R.Crim.P. 7; Wright, Fed.Practice and Procedure, § 131 (1969). But as to youthful offenders, see conflict between the District of Columbia Circuit in Harvin v. United States, 144 U.S.App.D.C. 199, 445 F.2d 675 (1971), cert. denied, 404 U.S. 943, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971), and the Seventh Circuit in United States v. Neve, 492 F.2d 465 (1974), affm’g, 357 F.Supp. 1 (W.D.Wis.1973), and United States v. Dorszynski, 524 F.2d 190 (7 Cir. 1975).
. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).
. Schlesinger v. Councilman, 420 U.S. 738, 760-61 n. 34, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975).
. Id. at 760, 95 S.Ct. at 1314.