accused was still lying on the bunk. The officer asked him what was the matter and he replied "I dont know". When he was told he was wanted in the front lines he replied "I can't". He was then sent to the sick bay and the corpsmen who assisted him testified he had little sense of direction, wobbled and tripped several times. A few day later he was found fit for duty and returned to his platoon but he left again in a matter of hours. There was psychiatric evidence to the effect that the accused was able to distinguish right from wrong and adhere to the right but that he was suffering from a combat precipitated anxiety reaction which made adherence to the right more difficult. In addition to the medical testimony several lay witnesses testified to the effect that the accused seemed to be in a shock state. In the course of the law officer's instructions, he instructed on insanity. However, no instructions were given on physical incapacity to comply with the lieutenant's order. Held: The foregoing facts support a finding that the accused had knowledge of the lieutenant's order. The officer testified he had telephoned and given the order in question and the operator testified that he repeated the order to the accused. Absent any evidence that the accused's hearing was impaired the court-martial could consider that evidence as showing a sensory reception by the accused. Furthermore, the accused's ability to carry on an ordinary conversation just prior to the order and his ability to respond in an intelligent manner to questions asked shortly after the order indicate that his hearing was normal.

Held also: The law officer was not required to instruct sua sponte on physical incapacity. The accused falls within the category of persons who suffer from severe anxiety reactions without major personality disorganization. Persons of that type are declared to be legally responsible, but they encounter more than normal difficulty in adhering to the right. According to the psychiatrist, the accused's incapacity, if any, was chargeable to his mental condition and even though adherence to the right was more than normally difficult, he was considered able to adhere to the right, and legally responsible for his offense. Instructions were given on insanity and where physical inability resulting from a combat precipitated psychiatric disorder is asserted as a defense, and instruction on insanity precludes the necessity of a law officer instructing sua sponte on physical incapacity. If the defense counsel desires the subject matter treated in a more refined or detailed manner he should furnish the law officer with a requested instruction. (Citing TM 8-240, Psychiatry in Military Law, par 16. Cf. U. S. v. Heims (No. 1497), 3 USCMA 418, 12 CMR 174.) [Brosman, J., concurring. Quinn, C. J., dissenting.] United States v. Latsis (No. 5327), 5 USCMA 596, 18

CMR 220.

U. S. Naval Base, Guantanamo Bay, Cuba, as a command inferior to those listed in par 154a (4), MCM, 1951, see NCM 337, Suter supra $ 35.3.

Proof of knowledge of regulation promulgated by U. S. Northeast Command as unnecessary, see ACM 9457, German, supra § 35.3.

D. SENTENCE AND PUNISHMENT

§ 63. In General

§ 63.5. Offenses listed elsewhere in Table of Maximum Punishments. The accused was found guilty of a failure to obey a lawful order. The evidence disclosed that the accused was informed by his company commander that a summary court-martial sentence which included hard labor without confinement had been approved. Pursuant to that sentence, the company commander instructed the accused that he cut grass daily during certain periods and that he report to the charge of quarters daily for the purpose of signing in and securing necessary mowing equipment. At the completion of each day's stint, the accused was required to report once more to the charge of quarters and to sign out. One day the accused reported for the hard labor detail, but left the designated area prior to the appointed time. The following day he did not appear at all. Held: The applicability of footnote 5, par 127c, MCM, 1951, is limited strictly to those situations which involve the failure to obey a lawful order and at the same time other misconduct specifically enumerated in the Table of Maximum Punishments, and in which the "other misconduct" is deemed to constitute the gravamen of the offense committed. (Citing U. S. v. Buckmiller (No. 492), 1 USCMA 504, 4 CMR 96; U. S. v. McNeely (No. 494), 1 USCMA 510, 4 CMR 102; U. S. v. Larney (No. 775), 2 USCMA 563, 10 CMR 61; U. S. v. Yunque-Burgos (No. 2848), 3 USCMA 498, 13 CMR 54.) The gravamen of the offense in question amounts to no more than a routine failure to report for duty in violation of Art 86(1), hence, the provisions of footnote 5 are applicable. The evidence fails to disclose that the accused was given a direct, personal order which he knowingly failed to obey. United States v. Loos (No. 4252), 4 USCMA 478, 16 CMR 52.

The punishment for the offense of violating a lawful general order by carrying a knife with a blade longer than three inches is limited to the punishment imposable for carrying a concealed weapon. The gravamen of the offense prohibited by the general order is substantially the same as that of carrying a concealed weapon. A specific punishment is provided for the latter offense and accordingly, under the provisions of footnote 5, par 127c, MCM, 1951, the maximum sentence imposable is limited to that specified for the offense of carrying a concealed weapon. (Citing U. S. v. Thompson, 3 USCMA 620, 14 CMR 38; U. S. v. Loos, 4 USCMA 478, 16 CMR 52; U. S. v. Buckmiller, 1 USCMA 504, 4 CMR 96. Distinguishing U. S. v. Yunque-Burgos, 3 USCMA 498, 13 CMR 54.) United States v. Lowe (No. 4620), 4 USCMA 654, 16 CMR 228.

The accused was convicted of violating an Eighth Army circular which provided that a curfew would be in effect between certain hours and that during this period all indigenous establishments and buildings, public and private, were off limits to United Nations personnel except those on official business. Held: Although the offense of breach of administrative restriction is specifically listed in the Table of Maximum Punishments, footnote 5, subpar 127c, MCM, 1951,

does not apply so as to limit the punishment in the instant case to that provided for breach of an administrative restriction. Admitting that the circular in question imposes a form of administrative restriction upon Eighth Army personnel by permitting them to be outside their area of assignment after curfew on official business only, it also prohibits them from being in indigenous establishments and buildings during curfew hours by placing such places off limits. This offense which occurred in Korea was of far greater gravity than an ordinary breach of restriction. Furthermore, the circular was based on military necessity and was not promulgated to increase the punishment for minor offense. Also, the same acts which constituted a violation of UCMJ, Art 92, would have given the accused's commanding officer the option of charging him with absence from his unit area in violation of Art 86(3), for which the punishment is as a court-martial may direct (EO 10247, 29 May 1951). CM 374077, Giles (1954) 16 CMR 334.

An order of the 3d Infantry Division provided that unit commanders would insure that curfew and off limit regulations were brought to the attention of all personnel. All enlisted personnel assigned and attached to the division were required to be present in their respective unit areas between certain hours daily, except that members of the division could be absent from their areas during this period provided they possessed proper authorization from their immediate commanding officer and provided that any travel performed in connection with such absence be by the most direct routes. The accused was convicted of violating this order by being outside of his organization without proper authorization. Held: The punishment for the offense of which the accused was convicted was not limited by the provisions of footnote 5, par 127c, MCM, 1951. The 3d Division curfew order was based on military necessity and was not dictated with the view to increasing the maximum punishment for minor offenses. Furthermore, the specification effectively alleges an absence without leave from the accused's organization, a violation of UCMJ, Art 86(3), and, by reference to the order in question, that absence occurred during nighttime hours. Thus, the accuser had a choice of charging the offense as a violation of UCMJ, Art 92, which he did, or as a violation of Art 86(3). Had the offense been charged as a violation of Art 86(3), the maximum punishment would have been as a court-martial might direct (EO 10247, 29 May 1951). Accordingly, footnote 5 is not controlling. (Not following CM 368235, Williams, 13 CMR 438, to the extent that it would require a different interpretation.)

Held also: The fact that the 3d Division curfew order might have the effect of imposing an administrative restriction upon all men of the division, so that a charge of breach of restriction could be sustained does not require that such a charge be made when an absence occurs and cannot control the decision in the instant case. (See JAGA 1953/1475, 9 Feb 1953, 3 Dig Ops No 2, DISOBED § 63.5). CM 374063, Jones (1954) 16 CMR 336.

The accused was found guilty of a violation of UCMJ, Art 92. With respect to punishment, the law officer instructed the court that under the Table of Maximum Punishments a violation of a general order or regulation carried a maximum punishment of two years confinement but that under footnote 5, par 127c, MCM, 1951, p 221, this punishment did not apply in cases where the accused was found guilty of an offense which, although involving failure to obey a lawful order, is specifically listed elsewhere in the Table of Maximum Punishments. He then instructed that inasmuch as offenses of possessing or using drugs were specifically listed in the Manual and carried a punishment of five years confinement, the punishment authorized in the instant case was five years instead of two. Held: The instruction of the law officer was prejudicially erroneous. Footnote 5 applies only to those cases where an accused may be guilty of a lesser offense which is pleaded as a violation of UCMJ, Art 92 in order to increase the severity of the punishment. It was not intended to enable an offense to be reallocated under another punitive article so as to increase the severity of the punishment. (Citing U. S. v. Yunque-Burgos (No. 2848), 3 USCMA 498, 13 CMR 54; U. S. v. Buckmiller (No. 492), 1 USCMA 504, 4 CMR 96; U. S. v. McNeely (No. 494), 1 USCMA 510, 4 CMR 102; U. S. v. Larney (No. 775), 2 USCMA 563, 10 CMR 61.) NCM 324, Hardy (1954) 16 CMR 388.

The accused was found guilty under a specification which alleged that having received a lawful command from his superior officer to remain within the limits of Etain Transportation Center the accused did on or about a certain time or date willfully disobey the same. The board of review held that the evidence below detailed established only a failure to obey. The accused's commanding officer had imposed nonjudicial punishment on him restricting him to the limits of the transportation center for fourteen days. When the accused went to his commanding officer to ask that the restriction be lifted, the commanding officer interrogated him about a failure to report for duty the previous day and the accused stated he had spent most of the previous day with his girl friend in her car parked just outside the gate of the transportation center. The commanding officer testified that he then told the accused this was a violation of his restriction and that he re-emphasized the fact that the accused was restricted to the limits of the transportation center and that he told the accused he was not to go outside the limits of the transportation center. The next evening the accused's girl friend drove her car to the transportation center and parked it outside about forty yards from the gate. The accused came down to the gate, walked through it to the car and conversed with her for three or four minutes and then returned to his place of duty. Held: Footnote 5, par 127c, MCM, 1951, applies in a situation which involves failure to obey a lawful order and at the same time other misconduct specifically enumerated in the Table of Maximum Punishments where such other misconduct is deemed to constitute the gravamen of the offense committed. (Citing U. S. v. Loos (No. 4252), 4 USCMA 478, 16 CMR 52; U. S. v. Buckmiller (No. 492), 1 USCMA 504, 4 CMR 96; U. S. v. McNeely (No. 494), 1 USCMA 510, 4 CMR 102; U. S. v. Larney

(No. 775), 2 USCMA 563, 10 CMR 61; U. S. v. Yunque-Burges (No. 2848), 3 USCMA 498, 13 CMR 54; U. S. v. Lowe (No. 4620), 4 USCMA 654, 16 CMR 228.) The specification in the instant case is in substance the same as the form specification for breach of restriction. Likewise, the evidence discloses only a breach of restriction. Accordingly, the gravamen of the offense herein is breach of restriction and the offense is punishable only as a breach of restriction under footnote 5, par 127c, MCM, 1951. (Citing U. S. v. Larney (No. 775), 2 USCMA 563, 10 CMR 61; U. S. v. Buckmiller (No. 492), 1 USCMA 504, 4 CMR 96; U. S. v. McNeely (No. 494), 1 USCMA 510, 4 CMR 102; U. S. v. Loos (No. 4252), 4 USCMA 478, 16 CMR 52; U. S. v. McKnight (No. 3363), 4 USCMA 190, 15 CMR 190.) CM 375015, Lattimore (1954) 17 CMR 400.

Applicability of Footnote 5, par 127c, MCM, 1951, where accused is charged with failure to obey orders involving absence from appointed place of duty, see NCM 379, Radar, AWOL § 51.1.