(dissenting):
I dissent from the result reached in the opinion of the majority, for the following reasons.
Appellant was convicted of attempting to publish a statement1 “with design to *107promote disloyalty and disaffection among the troops.” The only instruction given the court-martial on appellant’s First Amendment rights was at the prosecution’s request.2 It reads:
In connection with the issue of First Amendment protection the statement of Pfc Avrech, alone, need not create a clear and present danger in order for the statement to fall outside the protection of the constitution. Rather the court must be convinced that such a danger would arise if statements such as Pfc Avrech’s were protected by the First Amendment.
With all respect, in my judgment this instruction is 100% wrong. Avrech’s statement was protected unless, considering the circumstances, “the words used” created a clear and present danger. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919). The clear and present danger test as announced in Schenck has been adopted by the United States Court of Military Appeals. See United States v. Priest, 21 U.S.C.M.A. 564, 570, 45 C.M.R. 338 (1972), cited with approval Parker v. Levy, 417 U.S. 733, 758-759, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). And the majority concedes that Priest sets forth “the correct instructions to be used by courts martial in evaluating Free Speech defenses.” At 104. The Supreme Court in Parker v. Levy teaches us that “members of the military are not excluded from the protection granted by the First Amendment.” Id. 417 U.S. at 758, 94 S.Ct. at 2563. While “the different character of the military community and of the military mission requires a different application of those protections,” id., the legal principles basically remain the same.3
*108Since Avrech’s conviction is based on a single First Amendment instruction which grossly misstated the law, I submit it should be vacated. Now that Avrech has been proved right, rather than disloyal, it is the least that should be done.
. The statement reads in full:
“I’ve been in this country now for 40 days and I still don’t know why I’m here. I’ve heard all the arguments about communist aggression and helping the poor defenseless people. I’ve also heard this three years ago. The entire Vietnamese Army will switch to a pacification role in 1967 and leave major fighting to the American troops. (Statement of South Vietnamese Foreign Minister, L. A. Times, Nov. 18, 1966.) It seems to me that the South Vietnamese people could do a little for the defense of their country. Why should we go out and fight their battles while they sit home and complain about communist aggression. What are we cannon fodder or human beings? If South Vietnam was willing to go it on their own back in 1964 what the hell is the matter with them now? The United States has no business over here. This is a conflict between two different politically minded groups. Not a direct attack on the United States. It’s not worth killing American boys to have Vietnam have free elections. (Former Vice President Richard M. Nixon, L. A. Times, December 31, 1967.) That was our present leader of this country and now he has the chance to do something about the situation and what happens. We have peace talks with North Vietnam and the V.C. That’s just fine and dandy *107except how many men died in Vietnam the week they argued over the shape of the table? Why does this country think that it can play games with peoples lives and use them to fight their foolish wars, I say foolish because how can you possibly win anything like a war by destroying human lives. Human lives that have no relation at all to the cause of the conflict. Do we dare express our feelings and opinions with the threat of court-martial perpetually hanging over our heads? Are your opinions worth risking a court-martial? We must strive for peace and if not peace then a complete U.S. withdrawal. We’ve been sitting ducks for too long. * * * SAM”
. Appellant’s requested First Amendment instruction apparently was not given. But as the majority opinion states in its footnote 16:
Under military law, the defense preserves an objection to the instructions given if it has requested an instruction on the issue. It appears to be immaterial that the instruction requested by defense counsel was incorrect as long as the request reasonably puts the court on notice that “an instruction on the issue is essential to a proper disposition of the case.” United States v. Walker, 7 USCMA 669, 677, 23 CMR 133 (1957).
In spite of this footnote in its opinion, the majority in text at pages 105-106, suggests that appellant has waived the issue of faulty instructions by his failure to raise it in the military appeals process or the district court. As to raising the instruction issue in the military appeals process, the Walker case is dis-positive. After he was discharged from the service appellant was represented by new civilian counsel in the district court who had not been present at the court-martial. The only record of instructions appellant’s new counsel apparently had available is the same confusing summary transcript which has complicated our consideration here.
In any event, it is clear that Avrech and his counsel have consistently urged — here, in the district court, and in the military appeals process — that his statement was protected by the First Amendment. In light of that consistent' position, there is no indication whatever that appellant has “deliberately by-passed” the issue of inadequate instructions on First Amendment protections, and it is, in my judgment, a mistake to find that he has waived his claim. See Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) (waiver requires a “deliberate by-passing,” based on the “considered choice” of the accused).
. It should also be noted that the majority announces a standard for review of court-martial convictions far less exacting than is warranted by our prior cases, particularly Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 7, 415 F.2d 991, 997, cert. denied, 396 U.S. 1013, 90 S.Ct. 572, 24 L.Ed.2d 505 (1969), or by the Supreme Court’s latest decision in this area, Schlesinger v. Councilman, 420 U.S. 738, 746, 95 S.Ct. 1300, 1307, 43 L.Ed.2d 591 (1975). The majority states: “we will not overturn a conviction unless it is clearly apparent that, in the face of a First Amendment claim, the military lacks a legitimate interest in proscribing the defend*108ant’s conduct.” At 103. The majority derives this standard from Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 511 F.2d 1327, 1332-1333 (1975). But Carlson was not a court-martial case. It concerned the proper standard for reviewing the decision of a base commander denying permission, under applicable regulations, to servicemen who wanted to circulate petitions on a base in a combat zone.
I think it is a mistake to extend the Carlson standard beyond the facts there involved, and certainly a mistake to apply it to court-martial convictions, which may carry sanctions far more severe than inability to circulate a petition. Such a standard, it seems to me, makes it inevitable that we uphold nearly all disloyal statement convictions, no matter how mild the offending statement may be. At the very least, such a departure should not take place without a more careful consideration of both Kauffman and Councilman.