dissenting:
I am unable to take the step that Judge Cook takes in the majority opinion here.
It may well be that the rationale of United States v. Courtney,1 may be applicable to the situation before us here. However, I am unable to decide that issue based on a comment set forth in a footnote which was not required to be decided by the facts of that case.2
It is one thing to say that the Fifth Amendment is violated by prosecutorial discretion in charging possession of marijuana under Article 134 as distinguished from violation of a lawful regulation under Article 92 when the punishment for both, although different, are contained in the Code. But it is another matter entirely to state that the Fifth Amendment is violated where charges are brought under Article 92, UCMJ for a given offense and that same offense is chargeable under the applicable ordinance of the District of Columbia with a lesser penalty.
In the latter case, the Manual3 teaches that our application to the DC Code for guidance on the issue of maximum punishment is only in those instances in which offenses are not included within an offense or listed in the Table of Maximum Punishments or not closely related to either. Here, violation of a lawful regulation was charged and punishment therefore was provided by the Code. No application to the DC Code was necessary or required.
In any case, I believe we are yet bound by the en banc decision of this Court in United States v. Ross4 until such time as the United States Court of Military Appeals reverses Ross and United States v. Walter5 upon which it is partially based.6
. 1 M.J. 438 (1976).
. See footnote 10, id.
. Paragraph 127c, Manual for Courts-Martial, United States, 1969 (Revised edition).
. 47 C.M.R. 55 (A.C.M.R. 1973), pet. denied 48 C.M.R. 1000.
. 20 U.S.C.M.A. 367, 43 C.M.R. 207 (1971).
. An interesting issue is raised by home rule in the District of Columbia. Can the DC city council legislate in an appropriate case, the maximum punishment for an offense under the UCMJ?