(concurring in part/dissenting in part):
I concur with the majority opinion save that portion concerning Charge I and its specification. I find the majority’s view of United States v. Verdi, 5 M.J. 330 (C.M.A.1978), to be overbroad and I would limit that opinion to its specific facts.
The regulation under consideration in Verdi prohibited the wearing of wigs or hairpieces “while on duty or in uniform except for cosmetic reasons to cover natural baldness or physical disfiguration.” It is clearly stated in the Court’s opinion that where exceptions are contained within a criminal statute or regulation, the jury must be instructed that the burden of proof is upon the prosecution to prove that the accused does not fall within the exceptions.1 Principal support for the new rule was placed on the Court’s interpretation of the United States Supreme Court opinion in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971).
*715It is a recognized legal principle that the burden is generally on the defendant seeking the benefit of an exception to raise the issue, and that the Government need not negative an exception until the issue is presented.2 It finds support in Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934), which was relied upon by the United States Court of Military Appeals in United States v. Gohagen, 2 U.S.C.M.A. 175, 7 C.M.R. 51 (1953). The fact that this principle is well established in military law is adequately documented by Judge Cook in his dissent in Verdi and need not be repeated here. This principle is most often utilized in drug cases because regulations and statutes in this area generally provide for legitimate medical exceptions. The principle is incorporated by statute in the 1970 Federal Drug Abuse Act.3 The constitutionality of this provision has withstood attack even after Vuitch and In re Win-ship.4 Contrary to the conclusion in Verdi, I believe this general principle is still alive and healthy. A close examination of the two Supreme Court decisions relied upon in Verdi for establishing a new rule demonstrates why this is so.
In re Winship, a 1970 decision, is principally known for invalidating a state statutory provision which permitted a determination of juvenile delinquency on a preponderance of evidence bases. The Court in defining the issue stated:
This case presents the single, narrow question whether proof beyond a reasonable doubt is among the “essentials of due process and fair treatment” required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.
After an exhaustive review of prior cases involving the standard of proof necessary for criminal conviction, the Court stated in summary:
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
The Court then turned to the issue of whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. What is important to note from this case is that the excerpt which was quoted in Verdi constituted only a recitation of what was accepted legal principle at that time with respect to adults. There was no other consideration by the Court of principles of statutory interpretation or adequacy of proof and I do not believe that the opinion establishes any new rule other than the one announced by the Court as the narrow issue in question.
The more difficult case to understand is United States v. Vuitch, which was relied upon in Verdi for the conclusion that an exception incorporated within a statute be*716comes an element of the offense requiring Government proof beyond a reasonable doubt that the exception does not apply. Vuitch concerned the alleged violation of D.C.Code Ann. § 22-201, which prohibited abortions “unless the same were done as necessary for the preservation of the mother’s life or health and under the direction of a competent licensed practitioner of medicine.” The District Judge dismissed the indictments on the grounds that the abortion statute was unconstitutionally vague. A direct appeal to the Supreme Court was filed by the Government under the Criminal Appeals Act, 18 U.S.C. Sec. 3731. The principal concern of the Court was whether they should consider the case on direct appeal.5 After disposing of this issue the Court concluded that the statute in question was not unconstitutionally vague. In reaching its result the Court discussed the conclusions of the District Judge that the statute placed the burden of persuasion on the defendant once the fact of an abortion has been proved. Noting the “general guide to the interpretation of criminal statutes that when an exception is incorporated in the enacting clause of a statute, the burden is on the prosecution to plead and prove that the defendant is not within the exception”, the Court proceeded to examine the statute in question. The opinion states:
. When Congress passed the District of Columbia abortion law in 1901 and amended it in 1953, it expressly authorized physicians to perform such abortions as are necessary to preserve the mother’s ‘life or health.’ Because abortions were authorized only in more restrictive circumstances under previous D.C. law, the change must represent a judgment by Congress that it is desirable that women be able to obtain abortions needed for the preservation of their lives or health. It would be highly anomalous for a legislature to authorize abortions necessary for life or health and then to demand that a doctor, upon pain of one to ten years’ imprisonment, bear the burden of proving that an abortion he performed fell within that category. Placing such a burden of proof on a doctor would be peculiarly inconsistent with society’s notions of the responsibilities of the medical profession. Generally, doctors are encouraged by society’s expectations, by the strictures of malpractice law and by their own professional standards to give their patients such treatment as is necessary to preserve their health. We are unable to believe that Congress intended that a physician be required to prove his innocence. We therefore hold that under D.C.Code Ann. § 22-201, the burden is on the prosecution to plead and prove that an abortion was not ‘necessary for the preservation of the mother’s life or health.’
It seems clear from the foregoing language that the Court based its conclusion on the intent of Congress as to the elements of the offense and did not intend to establish a per se rule or a new principle of pleading or proof.6 The opinion is almost exclusively *717cited for the proposition that statutes should be construed, whenever possible, so as to uphold their constitutionality. I believe In re Winship, and Vuitch, which were not new cases at the time of Verdi, and which dealt with the emotional questions of abortion and juvenile rights, should be limited to their principal holdings. I do not consider that they mandate the conclusion reached in Verdi.
Two additional Supreme Court cases which have been cited on this issue are Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).
The statute under review in Mullaney was found to be deficient because it placed on the defendant rather than the Government the “burden of persuasion” with respect to the crucial factor distinguishing murder from manslaughter. This burden was clearly an integral part of the statute under consideration. This is substantially different from the rule which requires the defendant to raise an exception or special defense, which then activates the government’s burden of proof beyond a reasonable doubt as to the non-existence of the exception or defense.
In Patterson, the Court had occasion to consider the impact of its decision in Mulla-ney. Some argue that the two cases are in direct conflict. Regardless of the position one takes on these two cases, I believe they involve a more substantial issue than was under consideration in Verdi. In Patterson the Court stated:
Mullaney’s holding, it is argued, is that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt. In our view the Mulla-ney holding should not be so broadly read. The concurrence of two Justices in Mulla-ney was necessarily contrary to such a reading; and a majority of the Court refused to so understand and apply Mul-laney when Rivera was dismissed for want of a substantial federal question. [8] Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State’s practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
(Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281, 294-295.)
Mullaney and Patterson concern a fundamental issue of whether elements of an offense itself can be shifted from the requirement of proof by the Government to the defendant. They do not address the situation where an offense is made out under the statute without regard to any exceptions contained within the statute or regulation. The requirement for the defendant to present some evidence prior to requiring the Government to proceed to negative the exception beyond a reasonable doubt is in the nature of a special or affirmative defense. It does not change the burden of proof or the degree of proof. Some exceptions require proof by the Government of their non-existence because it is clear that the so-called exception is an integral part of the offense itself.
I believe the Verdi decision confused the burden of persuasion with the burden of presenting some evidence to raise an exception. This results in the Court’s language to the effect that all exceptions stated in a statute or regulation constitute elements of the offense which require proof by the Government beyond a reasonable doubt. I suggest that while this may be required in some cases, it is not a general rule as suggested in Verdi and in fact, the exceptions stated in the regulation in question do not qualify as elements of the offense. They *718are in the nature of special defenses which the law generally recognizes as placing no unconstitutional burden upon the defendant by requiring that he present some evidence to raise.
As was stated at the outset, I believe the opinion in Verdi to be overbroad. The majority recognized that the exception was in fact raised in that case and consequently I would limit its holding to an application of existing law rather than as establishing a new rule for the military. This position was generally adopted by the United States Navy Court of Military Review in United States v. Acosta, 6 M.J. 992 (N.C.M.R. 1979),7 and United States v. Brinkley, 7 M.J. 588 (N.C.M.R. 1979).8 I believe this view to be a preferable one to that taken in United States v. Woods, 7 M.J. 750 (A.C.M.R. 1979). I would affirm Charge I and its specification.
. Affirmative defenses which do not appear in the statute or regulation were distinguished. The Government does not have the initial burden to negative those affirmative defenses.
. United States v. Rowlette, 397 F.2d 475 (1968); see also McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed. 301 (1922). ALI Model Penal Code Sec. 1.12 (1962).
. 21 U.S.C. § 885(a)(1) provides:
It shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this subchapter, and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.
. See United States v. Black, 512 F.2d 864 (1975) (this case demonstrates how the Government’s own evidence may be sufficient to raise the exception and thus require that the Government negative the exception beyond a reasonable doubt); United States v. Benish, 389 F.Supp. 557, affirmed 523 F.2d 1050, certiorari denied, 424 U.S. 854, 96 S.Ct. 1428, 47 L.Ed.2d 359; Gray v. United States, 430 F.Supp. 399 (1977); United States v. Miranda, 494 F.2d 783 (1974), cert, denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181 (1974) (concerns failure to instruct as to exceptions where defendant did not introduce evidence placing him within exception to 21 U.S.C.A. § 841(a)(1)); United States v. Ramzy, 446 F.2d 1184, cert, denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 544 (1971); United States v. Collier, 478 F.2d 268 (1973).
. I believe it is significant that this case preceded several other pending cases concerning the legality of abortion statutes most of which were declared unconstitutional in the subsequent decision of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Court was unwilling to reach that ultimate issue in the instant case which accounted for much of the dissention.
Justice Blackmun noted that:
The five Justices constituting the majority, . . . are divided on the merits. One feels that the D.C.Code Ann. Sec. 22-201 (1967) lacks the requirements of procedural due process and would affirm the dismissal of the indictments. One would hold that a licensed physician is immune from charge under the statute. Three would hold that properly construed, the statute is not unconstitutionally vague and the dismissal of the indictments on that ground was error.
. In the subsequent case of United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), also involving an exception, the Court in note 9, page 551, 95 S.Ct. page 714, note 9, assumed arguendo that the government had the burden of proving a statutory exception and concluded they had carried this burden, and thus stated they did not have to consider “whether the exception must be pleaded and proved by criminal defendants.” This language supports the argument that the Court did not consider Vuitch as having settled the issue for all cases, but rather looks to the intent and nature of the exception to determine whether it must be pleaded and proved.
. It is interesting to note that Acosta contained two issues, the legality of a search and the failure of the government to prove the exceptions to its drug regulation. The Court of Review specifically refused to follow the dicta in Verdi. On petition, the United States Court of Military Appeals granted review on the search issue only.
. See also Off The Record, 1 November 1978.