(concurring):
I join in the principal opinion. However, I believe the conviction of appellant for violating Article 1139, U.S. Navy Regulations, not only involves the Fifth-Amendment privilege against self-incrimination but also due-process and First-Amendment guarantees.
Article 1139 provides:
Obligations to Report Offenses.
Persons in the Department of the Navy shall report to proper authority offenses committed by persons in the Department of the Navy which come under this observation.
(Emphasis added.) Since the word “this,” which has been present since 1979, renders the directive incomprehensible, I shall assume for the moment that the language was intended to be “their observation.” In that event, Article 1139 would seem to impose an obligation to report all offenses of any kind — whether violations of military law, state law, or local ordinances, and perhaps even violations of honor codes.
I suspect that the drafters of Article 1139 did not intend to create such a sweeping obligation; but I cannot be sure. Likewise, I am unsure what is meant by the regulation’s reference to “proper authority” — especially if the term “offenses” extends beyond violations of military law.
*84In United States v. Heyward, 22 M.J. 35, 38 (C.M.A. 1986) (Everett, C.J., concurring), I observed:1
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.
Nonetheless, I was sure that Heyward, an Air Force noncommissioned officer, was on notice of his duty to report drug abuse by subordinates. Contrariwise, I conclude that Article 1139’s broad language did not adequately define the duty to report offenses which it placed on Reed, so it did not provide him the constitutionally requisite notice.
Admittedly, Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), permits military authorities to issue directives that, if issued by civil authorities, might be invalidated as vague or over-broad. However, although Captain Levy must have been well aware that his conduct was intended to be punishable under Articles 133 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 933 and 934, respectively, appellant was not adequately advised by Article 1139 that his failure to report drug usage by others was intended to be criminally punishable. Because generally no legal duty exists to report “to proper authority” the crimes of others, the vague language of this regulation was insufficient to meet due-process requirements. Cf. United States v. Johanns, 20 M.J. 155 (C.M.A.), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985).
Next, I am convinced that sweeping requirements for servicemembers to report the crimes of others infringe on First-Amendment rights. The drafters of the Bill of Rights contemplated that Americans could speak and associate freely. However, if each person in the community is subject to punishment for not reporting any offense he may observe someone else commit, free speech will be chilled and the development of close personal relationships will be stifled. Even law-abiding citizens may not wish to associate with others who are under an obligation to inform the police of any violation of law they may observe.
Police officers and prosecutors usually have some discretion as to whom they arrest and prosecute. However, Article 1139 leaves no similar discretion for persons in the Navy in determining what offenses to *85report; and it appears to subject them to an absolute, all-inclusive duty to report offenses. If this Regulation was intended to be enforced criminally,2 failure to perform this duty authorizes imposition of severe penalties under Article 92, UCMJ, 10 U.S.C. § 892. To impose on everyone this sweeping obligation will have inhibiting effects on freedom of association and assembly in the Navy — effects so great as to be impermissible under the First Amendment.
I realize that Parker v. Levy, supra, emphasizes that the military community is unique, so that military personnel can be subjected to duties and restrictions that would be intolerable in the civilian community. See United States v. Heyward, supra at 38 (Everett, C.J., concurring). However, the power of an armed service over its members is not unlimited; and, even in the interests of military necessity, military authorities may not create a “police state” within the military society, as Article 1139 purports to do.
This Court heretofore has not tolerated military orders or regulations that were overly broad. United States v. Wilson, 12 U.S.C.M.A. 165, 30 C.M.R. 165 (1961); United States v. Wysong, 9 U.S.C.M.A. 249, 26 C.M.R. 29 (1958); United States v. Milldebrandt, 8 U.S.C.M.A. 635, 25 C.M.R. 139 (1958). In my view, these holdings have not been vitiated by Parker v. Levy, supra. Moreover, it appears clear from oral argument and otherwise that Article 1139 often is used as a threat for its in terrorem effect, rather than as a basis for prosecution and trial. Since many instances of such use may escape all judicial scrutiny, every reason exists to apply here those Supreme Court precedents which confer very broad standing to attack legislation that, because of its excessive breadth, has a chilling effect on free speech or other First-Amendment rights.3
Sometimes, of course, a statute will not be invalidated, even though it is overly broad. See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). There, the Supreme Court held that partial, rather than facial, invalidation was the required remedy in *86dealing with a state moral-nuisance statute which infringed on constitutionally protected speech. However, in that case it was feasible to sever the valid from the invalid portions of the statute by excising from the statute the word “lust.” On the other hand, I see no reasonable way to divide Article 1139 between that portion which is constitutionally overbroad and that portion, whatever its scope, which is constitutionally permissible. For us to attempt to rewrite this regulation would arrogate to this Court a power and responsibility which belong to the Executive Branch.
In view of the unconstitutionality of Article 1139, it cannot properly be enforced against appellant or against anyone else.4 Thus, Reed’s pleas of guilty were improvident because under no circumstances could he be lawfully convicted for disobeying this Regulation. For this reason, as well as those expressed in the principal opinion, the findings of guilty on this Charge must be set aside and the Charge and its specification dismissed.
. Judge Cox noted his agreement with my view. 22 M.J. 35, 38 n. 3.
. Conceivably Article 1139 was only hortatory and was intended to describe a moral obligation, rather than to impose a legal duty enforceable by criminal sanctions.
. In Secretary of State of Maryland v. Joseph H. Munson Company, Inc., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984), the Supreme Court observed:
[T]he Court has allowed a party to assert the rights of another without regard to the ability of the other to assert his own claims and " ‘with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' ” [Citations omitted] ("Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court”).
Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society — to prevent the statute from chilling the First Amendment rights of other parties not before the court.
Id. at 957-58, 104 S.Ct. at 2847.
"Overbreadth" has also been used to describe a challenge to a statute that in all its applications directly restricts protected First Amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest. [Citations omitted.]
Id. at 965 n. 13, 104 S.Ct. at 2851 n. 13.
******
Where... a statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State’s objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack. [Citations omitted.]
Id. at 967-68, 104 S.Ct. at 2852-53 (footnote omitted). See also Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.2d 1093 (1940); National Association for the Advancement of Colored People v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Aptheker v. United States, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Village of Schaumburg v. Citizens For a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980).
. See cases cited in n. 3.