(concurring):
For the most part, the common law was reluctant to impose affirmative duties— whether to rescue others, to report crimes, or otherwise. See Note, Forcing the Bystander To Get Involved: A Case for a Statute Requiring Witnesses to Report Crime, 94 Yale L.J. 1787 (1985). Most American legislatures and courts have shared this reluctance. Thus, crimes like misprision of a felony or being an accessory after the fact have generally been interpreted to require more than a failure to act. Moreover, in drafting its Model Penal Code, the American Law Institute rejected very modest proposals to create affirmative duties enforced by punishment.
Some widespread attitudes in our society may underlie the unwillingness to punish those who refuse to act — even when such action would help law enforcement or preserve the public safety. Our vernacular reflects these attitudes in the use of terms like “stool pigeon,” “rat,” “snitch” and “tattletale” — terms which make clear that those who report others’ misdeeds often are unpopular. While some institutions maintain honor codes, which may require the reporting of observed infractions, a substantial portion of our citizenry are unwilling to “get involved” by preventing or reporting crimes.
I do not applaud or condone the unwillingness many have to be their brother’s keeper — although, on the other hand, I certainly would not wish to live in a country like Nazi Germany, where children were motivated to report any seemingly disloyal thought or action of family members. My concern is that, because failure to act usually is not punishable, someone who fails to act may be unaware of the possible consequences of his omission.
In my view, it does not suffice for the Government to prove that the Air Force intended that appellant, as a noncommissioned officer, have a duty to report drug use by others. Also it must be proved, in light of the societal background concerning such inaction, that appellant knew — or should have known — that he was subject to this duty. Cf. United States v. Johanns, 20 M.J. 155 (C.M.A.), cert. denied, — U.S. -, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985). In short, if a servicemember might not be aware that he was required to perform a particular duty, he cannot properly be convicted of dereliction under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, for failure to perform the duty. Fortunately, as the principal opinion ob*39serves, Air Force directives had made Hey-ward well aware of his duty as a noncommissioned officer to report drug abuse by his subordinates. Because he had received clear guidance in this regard, he cannot complain now that he lacked notice.
Is every noncommissioned officer under a duty to report to higher authority all information about any crime by any servicemember of which he has knowledge? Can every servicemember be required to report every observable incident of drug use? These questions are not presented in this case. However, when and if they arise — and whatever the theory of prosecution — it appears clear to me that a conviction for failure to perform such a duty can be sustained only if the Government establishes clearly that the accused had adequate notice of the duty involved.