Opinion of the Court
George W. LatimeR, Judge:
The accused was convicted on one specification alleging that he knowingly, wrongfully and dishonorably made a false statement to an investigating officer, in violation of Article 133 of the Uniform Code of Military Justice, 10 USC § 933, and a second specification stating that he unlawfully failed to go to his appointed place of duty, in violation of Article 86 of the Code, 10 USC § 886. He was sentenced to be reprimanded and to lose 250 lineal numbers on the promotion list. The convening authority approved the proceedings and thereafter forwarded the record to The Judge Advocate General ■of the Navy who, in accordance with Article 69 of the Code, 10 USC § 869, directed a consideration of the record by a board of review. That tribunal •set aside the conviction for failure to repair, affirmed the findings on the remaining specification and affirmed only that part of the sentence which ordered a reprimand. Thereafter The Judge Advocate General certified the record to this Court with a request that we determine whether the specification alleges facts sufficient to constitute an offense in violation of Article 133 of the Code, supra.
Stripped of verbiage unnecessary to this opinion, the specification alleges that the accused wrongfully and dishonorably made to an investigating officer certain false statements about the issuance and possession of a military driver’s license, which were known to the accused to be false. The statements were given at an investigation seeking to fix responsibility for the damage done to a Government vehicle which was being driven by the accused.
The question which here divides the parties, as it did the members of the board of review, is whether in alleging this type of crime under Article 133 it is necessary to plead with specificity the following ingredients: (1) The officiality of the statements, and (2) that they were made with intent to deceive. On the one hand, accused contends that the specification must state such facts and others which, taken together, allege a violation of Article 107 of the Code, 10 USC § 907, for, states he, if they set out something less than that substantive offense, they are insufficient to allege any - cognizable crime. On the other hand, the Government asserts that the specification shows on its face that the false statements were knowingly and dishonorably made by [683]*683.a commissioned officer to an official investigator during an official investigation and that even though they do not state the offense of making a false official statement under Article 107, these facts sufficiently allege a violation of Article 133.
We shall consider the alleged deficiencies in the pleadings in reverse order to that stated. In United States v Gomes, 3 USCMA 232, 11 CMR 232, we were faced with a somewhat similar dispute except in that instance the specification alleged that the falsities were stated with intent to deceive. Here, in lieu of that allegation, the specification states that the statements were falsely and dishonorably given. In United States v Downard, 6 USCMA 538, 20 CMR 254, we defined dishonorable as connoting a state of mind amounting to gross indifference or bad faith. Obviously, in the case at bar, from the allegations of facts it is clear that the misstatements were made deceitfully, and we therefore find no substantial difference between this alleged offense and the one stated in Gomes, supra. For all practical purposes, we virtually foreclosed from favorable consideration the assertion now being advanced by the accused, for in that case we said:
“. . . We agree with the Government that an allegation that an officer of the armed forces who, with intent to deceive, gives a known false statement to a special agent of the Federal Bureau of Investigation making inquiry on acts touching upon the execution of his official duties while in the employ of the Government sufficiently charges conduct unbecoming an officer and gentleman.”
The Manual for Courts-Martial, United States, 1951, in discussing Article 133 offenses in paragraph 212, has this to say about the unlawful conduct of an officer:
“Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the individual as an officer seriously compromises his character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the individual personally, seriously compromises his standing as an officer.”
Within the framework of the last mentioned Article, there is little difference in the mens rea of one officer who in an official investigation makes a false statement with an intent to deceive and another officer who in the same sort of an investigation makes a false statement in bad faith. Under those assumed situations, both officers are exemplars of deceit who are seeking to mislead the investigator to protect themselves. While not necessarily involved in this issue on the sufficiency of the specification, the accused assessed the nature of his own conduct when he stated that his falsehoods placed him in a category “not worthy to wear the uniform.” Certainly, we are not disposed to disagree with that evaluation, for an officer who lies about his possession of a military driver’s license in an official investigation having to do with the operation of the vehicle seriously compromises his character as an honorable and trustworthy officer. The very act of falsifying in that situation is a base which will support an inference of either bad faith or intent to deceive, or both. Accordingly, we conclude the specification is sufficient to plead the necessary criminal intent.
As to officiality, the accused relies heavily on, but can gain little comfort from, our holding in United States v Claypool, 10 USCMA 302, 27 CMR 376. Because in that opinion an observation was made that an unsworn statement made out of court carries no penalty, accused contends there can be no offense alleged unless the statement is given while under oath or in an official proceeding. In that instance, the prosecution was initiated under Article 134, but the crime alleged was false swearing and the language was being used to illustrate the essential elements of that offense. Paragraph 213d (4) of the Manual for Courts-Martial, United States, 1951, sets out the elements of that crime and included therein are the' taking of an oath or affirmance and the-administration of the oath in a matter [684]*684in which it was required or authorized by law. When the language is considered for the purposes stated in that opinion, it should be obvious that we were saying no more than that a person may, in the absence of an oath, make an untrue statement without committing the crime of false swearing. However, in the case at bar, we are not concerned with that crime for it is not alleged that this accused was under oath when he gave the false answers. Our problem here is the criminality of accused for making un-sworn statements in an official investigation which he knew were false.
In United States v Aronson, 8 USCMA 525, 25 CMR 29; United States v Washington, 9 USCMA 131, 25 CMR 393; and United States v Johnson, 9 USCMA 442, 26 CMR 222, we had occasion to consider the giving of false statements to agents of the Government who were investigating the accused as suspects. In those cases, a majority of the Court held that Article 107 of the Code had not been violated where it was concluded the proceedings were not official.
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Opinion of the Court
George W. LatimeR, Judge:
The accused was convicted on one specification alleging that he knowingly, wrongfully and dishonorably made a false statement to an investigating officer, in violation of Article 133 of the Uniform Code of Military Justice, 10 USC § 933, and a second specification stating that he unlawfully failed to go to his appointed place of duty, in violation of Article 86 of the Code, 10 USC § 886. He was sentenced to be reprimanded and to lose 250 lineal numbers on the promotion list. The convening authority approved the proceedings and thereafter forwarded the record to The Judge Advocate General ■of the Navy who, in accordance with Article 69 of the Code, 10 USC § 869, directed a consideration of the record by a board of review. That tribunal •set aside the conviction for failure to repair, affirmed the findings on the remaining specification and affirmed only that part of the sentence which ordered a reprimand. Thereafter The Judge Advocate General certified the record to this Court with a request that we determine whether the specification alleges facts sufficient to constitute an offense in violation of Article 133 of the Code, supra.
Stripped of verbiage unnecessary to this opinion, the specification alleges that the accused wrongfully and dishonorably made to an investigating officer certain false statements about the issuance and possession of a military driver’s license, which were known to the accused to be false. The statements were given at an investigation seeking to fix responsibility for the damage done to a Government vehicle which was being driven by the accused.
The question which here divides the parties, as it did the members of the board of review, is whether in alleging this type of crime under Article 133 it is necessary to plead with specificity the following ingredients: (1) The officiality of the statements, and (2) that they were made with intent to deceive. On the one hand, accused contends that the specification must state such facts and others which, taken together, allege a violation of Article 107 of the Code, 10 USC § 907, for, states he, if they set out something less than that substantive offense, they are insufficient to allege any - cognizable crime. On the other hand, the Government asserts that the specification shows on its face that the false statements were knowingly and dishonorably made by [683]*683.a commissioned officer to an official investigator during an official investigation and that even though they do not state the offense of making a false official statement under Article 107, these facts sufficiently allege a violation of Article 133.
We shall consider the alleged deficiencies in the pleadings in reverse order to that stated. In United States v Gomes, 3 USCMA 232, 11 CMR 232, we were faced with a somewhat similar dispute except in that instance the specification alleged that the falsities were stated with intent to deceive. Here, in lieu of that allegation, the specification states that the statements were falsely and dishonorably given. In United States v Downard, 6 USCMA 538, 20 CMR 254, we defined dishonorable as connoting a state of mind amounting to gross indifference or bad faith. Obviously, in the case at bar, from the allegations of facts it is clear that the misstatements were made deceitfully, and we therefore find no substantial difference between this alleged offense and the one stated in Gomes, supra. For all practical purposes, we virtually foreclosed from favorable consideration the assertion now being advanced by the accused, for in that case we said:
“. . . We agree with the Government that an allegation that an officer of the armed forces who, with intent to deceive, gives a known false statement to a special agent of the Federal Bureau of Investigation making inquiry on acts touching upon the execution of his official duties while in the employ of the Government sufficiently charges conduct unbecoming an officer and gentleman.”
The Manual for Courts-Martial, United States, 1951, in discussing Article 133 offenses in paragraph 212, has this to say about the unlawful conduct of an officer:
“Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the individual as an officer seriously compromises his character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the individual personally, seriously compromises his standing as an officer.”
Within the framework of the last mentioned Article, there is little difference in the mens rea of one officer who in an official investigation makes a false statement with an intent to deceive and another officer who in the same sort of an investigation makes a false statement in bad faith. Under those assumed situations, both officers are exemplars of deceit who are seeking to mislead the investigator to protect themselves. While not necessarily involved in this issue on the sufficiency of the specification, the accused assessed the nature of his own conduct when he stated that his falsehoods placed him in a category “not worthy to wear the uniform.” Certainly, we are not disposed to disagree with that evaluation, for an officer who lies about his possession of a military driver’s license in an official investigation having to do with the operation of the vehicle seriously compromises his character as an honorable and trustworthy officer. The very act of falsifying in that situation is a base which will support an inference of either bad faith or intent to deceive, or both. Accordingly, we conclude the specification is sufficient to plead the necessary criminal intent.
As to officiality, the accused relies heavily on, but can gain little comfort from, our holding in United States v Claypool, 10 USCMA 302, 27 CMR 376. Because in that opinion an observation was made that an unsworn statement made out of court carries no penalty, accused contends there can be no offense alleged unless the statement is given while under oath or in an official proceeding. In that instance, the prosecution was initiated under Article 134, but the crime alleged was false swearing and the language was being used to illustrate the essential elements of that offense. Paragraph 213d (4) of the Manual for Courts-Martial, United States, 1951, sets out the elements of that crime and included therein are the' taking of an oath or affirmance and the-administration of the oath in a matter [684]*684in which it was required or authorized by law. When the language is considered for the purposes stated in that opinion, it should be obvious that we were saying no more than that a person may, in the absence of an oath, make an untrue statement without committing the crime of false swearing. However, in the case at bar, we are not concerned with that crime for it is not alleged that this accused was under oath when he gave the false answers. Our problem here is the criminality of accused for making un-sworn statements in an official investigation which he knew were false.
In United States v Aronson, 8 USCMA 525, 25 CMR 29; United States v Washington, 9 USCMA 131, 25 CMR 393; and United States v Johnson, 9 USCMA 442, 26 CMR 222, we had occasion to consider the giving of false statements to agents of the Government who were investigating the accused as suspects. In those cases, a majority of the Court held that Article 107 of the Code had not been violated where it was concluded the proceedings were not official. However, it is to be noted that nothing was said about the possibilities of offenses under Articles 133 or 134 being alleged because the instructions were inadequate to require a finding on the essential elements of those crimes. To the contrary, in the case at bar the court-martial was required to find that accused’s acts were unbecoming an officer and gentleman, and hence those cases only obliquely touch on the issue. More appropriate In this case is the holding in United States v Gomes, supra. There the investigators were agents of the Federal Bureau of Investigation, and the prosecution was bottomed on an Article 133 offense. The Chief Judge, speaking for a unanimous Court, stated:
“Undoubtedly, if it were alleged that the accused officially gave the false statment to the special agents of the Federal Bureau of Investigation, the specification would be unassailable (see CMO 1-1939, page 45; United States v Crawford, 32 BR 47). We do not believe that the omission here of a specific allegation that the statement was official is fatal.
“An accused may properly be charged with perjury for false statements made while testifying on his own behalf. Youngblood v United States, 266 F 795 (CA 8th Cir) (1920). We think he should be held similarly accountable if he makes a known false statement with the intent to deceive in connection with an inquiry into his purported misconduct prior to a trial.”
That is the situation in the case at bar for the specification alleges that an investigating officer was interrogating the accused about the issuance and possession of a Government operator’s license which was a condition precedent to the lawful driving of a Government vehicle. The investigator was a Marine Corps major who we must assume was detailed properly to investigate the loss, the investigation was in fact official, and the accused was the driver of the automobile at the time it was damaged. The' United States had an official interest in inquiring into the circumstances of damage to its property, the accused was a bailee of the property, and the investigator was pursuing properly an investigation to determine who was responsible for the damage. While the facts could have been more artfully pleaded, we believe that when a specification is challenged generally for the first time on appeal, if the facts appear in any form or by fair construction can be found within the language used, it is sufficient to withstand the broadside charge that an offense has not been stated. See United States v Sell, 3 USCMA 202, 11 CMR 202. In this instance, the specification states sufficient facts to allege criminal acts which were unbecoming an officer and gentleman.
For all of the foregoing reasons, the decision of the board of review is affirmed.