(concurring in the result):
I concur in the result because of the precedent established by United States v. Marsh, 11 M.J. 698 (N.M.C.M.R.1981) (en bane). If, however, I had been a member of this court when United States v. Marsh, supra, was decided, I would have joined the dissent.
There are certain basic characteristics of an ex post facto law. Any statute that “punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with a crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” Beazel v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925), cited with approval in Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 2290 (1977).
The reason that the Constitution prohibits ex post facto laws is evident: it enables men and women to conduct their affairs with knowledge as to what acts, or failures to act, are criminal, and what the sanctions will be if they choose to violate the law.
In this regard, in Dobbert v. Florida, supra, at 293, 97 S.Ct. at 2298, the United States Supreme Court noted, with approval, the following language from some of its earlier decisions:
[T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, .. . and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance. . ..
The amendments to Article 2 of the Uniform Code of Military Justice (UCMJ) are procedural in nature. There is no nexus between recruiter misconduct and the commission of a substantive offense. The punitive articles of the UCMJ, and their punishments, have been unaffected by this change. Further, special requirements mandate an explanation of the punitive articles to all enlisted personnel at least twice during their initial enlistment. Article 137, UCMJ. Consequently, service personnel have ample notice of what legal and disciplinary constraints will govern their conduct throughout their military service. As a result, under the guidelines provided by the United States Supreme Court in Dobbert v. Florida, supra, there is more than fair warning of what constitutes a violation of the UCMJ. Consequently, neither the spirit nor the letter of the ex post facto doctrine has been violated in this case.
Ultimately, I believe the issue really “turns upon how much violence is done to our instinctive feelings of justice and fair play.” Falter v. United States, 23 F.2d 420, 425-426 (2nd Cir. 1928), (Hand, J.). Those values are clearly in the Government’s favor on this issue. In this regard, see United States v. Marsh, supra, at 711—712 (Baum, S. J., dissenting).