(dissenting):
I would have great difficulty in convicting an airman of willfully disobeying the order of a commanding officer, if the officer, when placed under oath, was unable to articulate with any degree of specificity the words he used in delivering the order. My review of the record leads me to conclude that the extent of the commander’s action was to remind the accused that he was still restricted to the base and, at most, restate the order he gave when he restricted the accused originally. I reach that conclusion in spite of the fact that the accused entered a plea of guilty to the offense charged and entered into a stipulation that his commander ordered him “not to leave the base again during the period of the restriction.”
The majority are overreaching in their attempt to lift this case “above the common ruck.” We all agree that the court is required to test for the “ultimate offense.” The application of that test to these facts convinces me that the “ultimate offense” committed by this accused was the breaking of the restriction imposed by the Article 15 action. I believe that the facts of this case are precisely those contemplated by Chief Judge Everett when he said, “... it is questionable that a charge of willful disobedience of the order not to leave the ship should have been added to the charges alleging breach of restriction to the ship.” United States v. Doss, 15 M.J. 409, 413 (C.M.A.1983). I do not detect the open defiance of authority which appears to be the base on which the majority opinion rests. I find it somewhat bemusing for the majority to conclude that the commander’s order was not intended for the purpose of “enhancing potential punishment,” but then pronounce their judicial blessing on that event when it ultimately occurs.
The appropriate disposition of this case is to set aside the findings of guilty of Charge II and its specification, to dismiss that Charge, and reassess the sentence. In reassessing, I would set aside the bad conduct discharge and two months of the forfeiture, since that part of the sentence would not then be authorized. I would approve the remainder of the sentence as adjudged.