(dissenting):
I would like to agree with that portion of Chief Judge Everett’s opinion which states that Article 1139, U.S.Navy Regulations, is overly broad and vague and, therefore, appellant is entitled to a reversal of the Charge. Indeed, I would have joined him if appellant had contested the Charge and litigated the question at trial.
The fatal flaw I observe in appellant’s position argued on appeal is that appellant, himself, did not find , the regulation to be too vague and overly broad. He admitted to the military judge that he knew he had a duty under the regulation to report the transfer of drugs, but he failed to do so. Although the regulation may be vague and overly broad to Chief Judge Everett and me, it certainly was not to this appellant, who readily admitted his guilt. See generally Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). One who knows and understands the prohibitions of the law cannot be heard to complain that it is vague.
I cannot agree with Judge Sullivan’s reliance on United States v. Heyward, 22 M.J. 35 (C.M.A. 1986), which I authored, to find the pleas possibly improvident. United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973). If the Heyward decision represented a departure from existing practice in the Navy, perhaps I would be tempted to overlook this obviously-valid guilty plea, but the decision in Heyward was in part predicated on long-standing Navy practice not to hold a principal liable for failing to report when doing so would have required self-incrimination. See United States v. Tyson, 2 M.J. 583 (N.C.M.R. 1976). I have faith that defense counsel and the military judge were aware of this case.
In short, this guilty plea case is the wrong vehicle to use to make an earthshaking constitutional pronouncement or to set an otherwise proper plea aside as being improvident.
I would affirm the decision of the Court of Military Review.