(dissenting):
The resolution of the specified issue involves no more than application of accepted rules of statutory construction to the language of Article 113. This Court has made clear that:
When a statutory provision is unambiguous, further judicial interpretation is unnecessary except in rare and exceptional circumstances. An appellate court is bound to assume that the legislative purpose of a statute is accurately expressed in the language of the statute. Unless an appellate court can discover a clearly expressed legislative intent to the contrary, the language of the statute is ordinarily regarded as conclusive.
Dukes v. Smith, 34 M.J. 803 (N.M.C.M.R. 1991) (citations omitted). See Moskal v. United States, 498 U.S. 103, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990); United States v. James, 478 U.S. 597, 106 S.Ct. 3116, 92 L.Ed.2d 483 (1986); United States v. Graham, 16 M.J. 460 (C.M.A.1983); United States v. Ware, 1 M.J. 282 (C.M.A.1976). Article 113 is patently clear in requiring more than mere sleeping on post to support a conviction—it requires that the accused be “found” sleeping on post.
The term “to be found” is the passive of the infinitive of the verb “find” which, as any dictionary will reveal, means to come upon, perceive, or discover. This definition accords with the explanation by Colonel Winthrop of the offense of drunk on duty under Article of War 38, the precursor of Article 112, mentioned in the majority opinion. The express terms of the statute, therefore, require that someone come upon or otherwise discover a sentinel when he is sleeping, or that the sentinel be perceived sleeping by some means, before he may be convicted under the Article. This is conclusive and concludes the interpretation of the Article unless this Court can discover a clearly expressed legislative intent to the contrary. The majority’s conclusion that there exists “no case law [or] legislative history of the Code concerning the meaning and significance of the word ‘found’ ” is tantamount to a concession that no legislative intent contrary to the language of the statute exists, consequently, this Court must give legal effect to the express language of the statute.
The Government contends that “the word ‘found’ is simply a reference to the typical means by which the sleeping on post is discovered by military authorities.” GOVERNMENT REPLY TO ISSUE SPECIFIED at 3. Penal statutes in general, and the Code in particular, do not commonly include language pertaining to methods of proof. If the word “found” does relate to a method of proof, that method would appear to be mandatory since it is not preceded by a modifier such as “ordinarily.” This argument is unpersuasive to me.
Next the Government argues that a literal interpretation of a statute may be avoided if such an interpretation would lead to an absurd result. Id. at 4. If there is any reasonable basis for the requirement that a sentinel be found sleeping, the requirement is not absurd. The offense of sleeping on post has always been considered an extremely serious offense, so much so that it was and still is, in wartime, a capital offense. Recognizing that a person who is fatigued from combat or has been without sleep for a significant time is not readily aware of a momentary lapse into sleep and often cannot honestly judge his own level of consciousness, it is not unreasonable to require that another person have observed the alleged sleep in order to describe his observations to the court to prove to the fact-finder beyond a reasonable doubt that the accused was sleeping. Additionally, in most cases the most persuasive evidence that a sentinel was sleeping may be the fact that a person could approach the sentinel and observe his condition without challenge or notice by the sentinel. Article of War 86, the progenitor of Article 113, was drafted with wartime service in mind. An accused could not plead guilty then or now to a capital offense. The language of the two articles may reflect the reasonable view that a servicemember should not be *602executed for sleeping on post unless a witness can testify from his own observations and perception gained at the time of the alleged sleeping as to the facts and circumstances surrounding the incident. I conclude that the language of the Article may stem from conscious choice and does not lead to an absurd result. If Congress is displeased with the efficacy of any Codal provision resulting from this Court’s interpretation of clear Codal language, the remedy is an amendment of the Code.
In this case, appellant made clear during the providence inquiry that no one found him sleeping on post. This response is inconsistent with his pleas of guilty, consequently, I would set aside and dismiss Charge III and its specification. Upon reassessment of the sentence in accordance with United States v. Peoples, 29 M.J. 426 (C.M.A.1990) and United States v. Sales, 22 M.J. 305 (C.M.A.1986), I would affirm the sentence approved on review below, reducing forfeitures to $200.00 pay per month for 2 months.