(dissenting):
I dissent. The military judge erred in excluding evidence of the accused’s good military character and lawfulness because those character traits were pertinent to the offenses charged.
Military Rule of Evidence (MRE) 404(a)(1) provides that evidence of a pertinent trait of the character of the accused is admissible to prove that he acted in conformity therewith on a particular occasion. The basic issue is whether the character trait in question would make any fact of consequence to the determination of the case more or less probable than it would be without the evidence of the trait. United States v. Clemons, 16 M.J. 44 (C.M.A.1983), citing United States v. Angelini, 678 F.2d 380 (1st Cir.1982). Evidence of a general trait of character is admissible if relevant. United States v. Hewitt, 634 F.2d 277 (5th Cir.1981). Evidence of the character trait of lawfulness is admissible. Clemons, Angelini, and Hewitt, supra.
The accused was convicted of wrongful possession, transfer, and sale of a controlled substance. The military judge excluded evidence of good military character, which consisted of enlisted performance evaluations, including evidence of good military behavior.
Illegal drug trafficking is a grave concern to the military. See United States v. Middleton, 10 M.J. 123 (C.M.A.1981), n. 11; United States v. Trottier, 9 M.J. 337 (C.M.A.1980). The campaigns of the Chief of Naval Operations and the Commandant of the Marine Corps to eradicate drug abuse and trafficking in the naval service have been widely publicized. The decision of a seller to participate in and accelerate the infusion of illegal controlled substances within the structure of the military organization represents a flagrant disregard for his responsibilities to his fellow soldiers, marines, sailors, or airmen, and to the armed forces of his nation. United States v. Harvey, 12 M.J. 626 (N.M.C.M.R.1981). A person of good military character is less likely to commit offenses which strike at the heart of military discipline and readiness. Therefore, good military character is clearly a pertinent character trait in military drug cases. Contra, United States v. Weeks, 17 M.J. 613 (N.M.C.M.R.1983); United States v. Belz, 14 M.J. 601 (A.F.C.M.R.1982).
As noted above, the excluded evidence of good military character included evidence of good military behavior. The trait of military behavior is a measure of a service person’s willingness to obey commands and regulations. As such it is equivalent to the character trait of lawfulness which is pertinent and admissible. See Clemons, Angelini, and Hewitt, supra.
Clemons and the cases cited there with approval do not limit the admissibility of evidence of the character trait of lawfulness or lawabidingness to situations in which a defense other than a general denial is raised. In Angelini the defendant denied drug trafficking. Clemons does not limit the admissibility of evidence of the trait of good military character to such situations. The majority, as did another panel of this Court in Weeks, supra, has read Clemons too narrowly and, hence, misconstrues MRE 404(a)(1).
I conclude that the military judge erred in excluding the proferred evidence of good military character and lawfulness. Testing for prejudice, I find it. Therefore, I would set aside the findings and sentence, authorizing a rehearing.