(dissenting):
I dissent as to the majority’s broad conclusion on the jurisdiction of a summary court-martial.
The issue before this court for reconsideration does not merely entail the comparison of our challenged holding with the face of a federal statute, Article 20, Uniform Code of Military Justice, 10 U.S.C. § 820. See United States v. Moore, 5 U.S.C.M.A. 687, 697, 18 C.M.R. 311, 321 (1955). Rather, the proper resolution of the granted issue comprehends an analysis of our legal conclusion and its rationale in light of the judicial gloss placed on that statute by the Supreme Court in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). The opinion of the majority is unsatisfactory in this respect and, in my mind, is unresponsive to the implicit constitutional soundings taken by that Honorable Court in its role as the chief interpreter of what the law is. See Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).
In United States v. Booker, 5 M.J. 238, 242 (C.M.A.1977), I concluded, in writing for the majority, that:
In order to comply with the views expressed by the Supreme Court and to obtain results consistent with the underlying rationale of Gagnon and Kent, we find it necessary to limit summary courts-martial to disciplinary actions concerned solely with minor military offenses unknown in civilian society.
My reasons for this holding were delineated in great detail in the opinion. The majority opinion on reconsideration does not dissuade my belief in the validity and reasonableness of the challenged holding and its rationale. Accordingly, with slight exception, I will remain constant in their support, especially in the face of antedated and unsupported critical onslaughts.
Admittedly, my interpretation of Article 20, UCMJ, is restrictive. See J. Sutherland, Statutory Construction. (4th ed.) VOL 2a, § 54:06 (1973). Nonetheless, the application of the statute in this manner provides the practical foundation through which the statute may retain its viability with respect to the 5th and 6th amendment considerations articulated in Middendorf v. Henry, supra. The majority opinion for reconsideration fails to allay additional misgivings on my part with the potential for judicial mischief inherent in their broad interpretations of Article 20, UCMJ. Particularly, it is not inconceiveable that serious felony charges may be referred to this forum because weaknesses in the government case may be less subject to exposure at such a hearing without trained counsel, or a lack of funds renders more complex litigation unfeasible. Moreover, it is absurd to assume either justice or military discipline will be served by the dispensing of grossly disproportionate punishments of a lesser nature at summary court-martial for such serious offenses as murder, rape or aggravated assault. As indicated in my opinion in United States v. Booker, supra, I believe that the Supreme Court in Middendorf v. Henry, supra, clearly intimated, in view of articulated constitutional considerations, the proper stratification of offenses to be punished at a summary court-martial thereafter.
*249Nevertheless, I am not presently satisfied with the particular classifications of offenses made in United States v. Booker, supra, with respect to those offenses triable at a summary court-martial. Simply because the offense is known in some form in the civilian community, it is not axiomatic that the commanding officer forgo the use of this disciplinary mechanism provided by Congress for the special or general court-martial. “Minor military offenses unknown in the civilian society” must be viewed as well in the context of the distinctive qualities of the military community delineated by the Supreme Court in Middendorf v. Henry, supra. The touchstone for determining those offenses properly within the jurisdictional limitations implicitly set by the Supreme Court is perceived by me to be minor violations of military law which directly and primarily threaten the discipline, effectiveness and cohesiveness of the military unit. See also Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Indeed, any minor offense committed within the military community, even if found in some form in the civilian community, may be punished at a summary court-martial if it constitutes, in the discretion of the commanding officer, a clear disruption to discipline and creates a concomitant obstacle to his performance of the military mission. Examples of such civilian type minor misconduct which may be punished at a summary court-martial are the commonly known “barrack’s larceny”, simple assaults resulting from brawling among service members and service-connected drug offenses. Such offenses, which might not be proscribed or prosecuted in the civilian community, possess an added significance within the military environment due to their challenge to the integrity of discipline within the military unit. On the other hand, if the gravamen of the offense is not primarily military or minor, and the offense constitutes an equivalent threat to that experienced in the civilian community, e. g., aggravated assault, the more appropriate constitutional course of action would be to handle it as a military justice matter at a special or general court-martial rather than a discipline matter at a summary court-martial.
This holding on reconsideration in no way changes the result reached in the case of United States v. Booker, supra. Accordingly, with the exception of the reservations just mentioned, I would affirm the decision as it originally was issued.