Opinion of the Court
SULLIVAN, Judge:
In June and July 1985, appellant was tried by a general court-martial composed of a military judge alone at the Naval Station, Mayport, Florida. Contrary to his pleas, he was found guilty of being an accessory after the fact to the larceny of government property, misprision of the same larceny, and four specifications of failing to report this larceny and various offenses related thereto contrary to Article 1139, U. S. Navy Regulations. See Arts. 78, 134, and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 878, 934, and 892, respectively. The judge sentenced appellant to a bad-conduct discharge, confinement for 6 months, and forfeiture of $413 pay per month for 6 months. The convening authority approved these results. The Court of Military Review consolidated with some modification the accessory and the misprision offenses into a single specification of Charge VI. It also consolidated two of the service-regulation offenses into a single specification of the Additional Charge. It dismissed the remaining offenses and affirmed the findings of guilty of the consolidated specifications. Upon reassessment, it affirmed the sentence.
This Court specified the following issues for review:
[71]*71I
WHETHER CHARGE VI AND ITS SPECIFICATION SHOULD BE DISMISSED BECAUSE (A) THE CHARGE AS FORMULATED BY THE COURT OF MILITARY REVIEW DOES NOT STATE AN OFFENSE UNDER ARTICLE 134, UCMJ (MISPRISION OF AN OFFENSE), OR (B) THERE WAS INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ACTS THAT AFFIRMATIVELY CONCEALED THE CRIMINAL ACTS OF OTHERS.
II
WHETHER THE ADDITIONAL CHARGE AND ITS SPECIFICATION (VIOLATION OF A LAWFUL GENERAL REGULATION (ART. 1139, NAV. REG.)) SHOULD BE DISMISSED BECAUSE OF (A) THE UNCONSTITUTIONALITY OF ART. 1139, OR (B) THE CHARGED CONDUCT INVOLVES THE PRIVILEGE OF APPELLANT AGAINST SELF-INCRIMINATION UNDER THE 5TH AMENDMENT, UNITED STATES CONSTITUTION.
We hold that the court below erred as a matter of law in its modification of the specification of Charge VI, and we reinstate the language of the original misprision specification. We also set aside the remaining service-regulation offense because of the Government’s concession that it is multiplicious for findings with the misprision offense.
The court below stated the following concerning the specifications challenged in the granted issues:
4. We will dismiss Specifications 2 and 4 of the Additional Charge as the duty to report offenses involving the conspiracy to remove and destroy the pages from the OTL [Operating Target Log] and the actual removal and destruction of the pages pertain to criminal conduct in which the appellant was not only actively involved, but initiated, as reflected
in his conviction of Charges I and VI, and therefore, the privilege against compelling self-incrimination excuses his noncompliance with his duty otherwise to report the offenses. United States v. Heyward, 22 M.J. 35 (C.M.A.1986).[1] For the same reason, we disapprove the words in Charge VI to the effect “and fail to make the same known to the civil or military authorities as soon as possible. ” On the other hand, we do not apply the Heyward rationale of excusing noncompliance in regard to consolidated Specifications 1 and 3 because the failure to report as alleged therein pertains to conduct of the conspirators which occurred before the appellant elected to engage in the cover-up, and, therefore, the offenses were completed at a time that the appellant would not have incriminated himself by reporting the conspirators. As such, the consolidated offenses in Specifications 1 and 3 of the Additional Charge neither are preempted by nor are multiplicious for findings or sentencing with the consolidated offenses of Charges I and VI.
5. We do not believe a punitive discharge is excessive where the appellant abdicated his responsibilities as a senior chief petty officer and failed to report to proper authorities evidence of crime in his division of which [sic] he personally observed and further actively assisted the conspirators in concealing evidence of the crime after Naval authorities became aware of such matters.
Accordingly, Charge I and Specifications 2, 3, and 4 of the Additional Charge are set aside and dismissed. Charge I and Specification 3 of the Additional Charge are, incorporated into, respectively, Charge VI and Specification 1 of the Additional Charge, as follows:
Charge VI. Violation of the UCMJ, Article 134.
Specification. In that Senior Chief Machinist’s Mate Lyle V. Hoff, U.S. Navy, Precommissioning Unit Theodore Roosevelt, on active duty, did, on board USS Yosemite, having knowledge that Master Chief Boiler Technician Donald H. Brew[72]*72er, U.S. Navy, Fleet Reserve, Boiler Technician Second Class Frank C. Menn, U.S. Navy, Boiler Technician Second Class Andrew R. Courson, U.S. Navy, and Machinery Repairman Second Class Wade A. Fruge, U.S. Navy, had actually committed a serious offense, to wit: larceny of government property of a value of over $100.00, did, on board USS Yosemite, from about September 1983 to about April 1984, wrongfully conceal such serious offense by wrongfully inducing the said persons to recopy and alter pages from the R-2 Operating Target Log of the USS Yosemite, and by suggesting that if pages torn out of the R-2 Operating Target Log for USS Yosemite were destroyed the Naval Investigative Service would notice the discrepancy.
Additional Charge. Violation of the UCMJ, Article 92.
Specification 1. In that Senior Chief Machinist’s Mate Lyle V. Hoff, U.S. Navy, Precommissioning Unit Theodore Roosevelt, on active duty, did, on board USS Yosemite, between September 1983 and April 1984, violate a lawful general regulation, to wit, Article 1139, U.S. Navy Regulations, dated 26 February 1973, by wrongfully failing to report the conspiracy among Master Chief Boiler Technician Donald H. Brewer, U.S. Navy, Fleet Reserve, Boiler Technician Second Class Frank C. Menn, U.S. Navy, Boiler Technician Second Class Andrew R. Courson, U.S. Navy, and Machinery Repairman Second Class Wade A. Fruge, U.S. Navy, to commit offenses under the Uniform Code of Military Justice, as well as the actual commission of an offense, to wit, conspiracy to commit larceny and wrongful disposition of military property and the actual theft of such property, of a value of over $100.00, said offenses being committed by persons in the Department of the Navy and under the observation of the said Senior Chief Hoff.
(Emphasis added.)
The crime of misprision of a felony, prosecuted under Article 134 of the Code, was well established as a matter of military law. See para. 213/ (6), Manual for Courts-Martial, United States, 1969 (Revised edition); para. 213d (6), Manual for Courts-Martial, United States, 1951.
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Opinion of the Court
SULLIVAN, Judge:
In June and July 1985, appellant was tried by a general court-martial composed of a military judge alone at the Naval Station, Mayport, Florida. Contrary to his pleas, he was found guilty of being an accessory after the fact to the larceny of government property, misprision of the same larceny, and four specifications of failing to report this larceny and various offenses related thereto contrary to Article 1139, U. S. Navy Regulations. See Arts. 78, 134, and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 878, 934, and 892, respectively. The judge sentenced appellant to a bad-conduct discharge, confinement for 6 months, and forfeiture of $413 pay per month for 6 months. The convening authority approved these results. The Court of Military Review consolidated with some modification the accessory and the misprision offenses into a single specification of Charge VI. It also consolidated two of the service-regulation offenses into a single specification of the Additional Charge. It dismissed the remaining offenses and affirmed the findings of guilty of the consolidated specifications. Upon reassessment, it affirmed the sentence.
This Court specified the following issues for review:
[71]*71I
WHETHER CHARGE VI AND ITS SPECIFICATION SHOULD BE DISMISSED BECAUSE (A) THE CHARGE AS FORMULATED BY THE COURT OF MILITARY REVIEW DOES NOT STATE AN OFFENSE UNDER ARTICLE 134, UCMJ (MISPRISION OF AN OFFENSE), OR (B) THERE WAS INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ACTS THAT AFFIRMATIVELY CONCEALED THE CRIMINAL ACTS OF OTHERS.
II
WHETHER THE ADDITIONAL CHARGE AND ITS SPECIFICATION (VIOLATION OF A LAWFUL GENERAL REGULATION (ART. 1139, NAV. REG.)) SHOULD BE DISMISSED BECAUSE OF (A) THE UNCONSTITUTIONALITY OF ART. 1139, OR (B) THE CHARGED CONDUCT INVOLVES THE PRIVILEGE OF APPELLANT AGAINST SELF-INCRIMINATION UNDER THE 5TH AMENDMENT, UNITED STATES CONSTITUTION.
We hold that the court below erred as a matter of law in its modification of the specification of Charge VI, and we reinstate the language of the original misprision specification. We also set aside the remaining service-regulation offense because of the Government’s concession that it is multiplicious for findings with the misprision offense.
The court below stated the following concerning the specifications challenged in the granted issues:
4. We will dismiss Specifications 2 and 4 of the Additional Charge as the duty to report offenses involving the conspiracy to remove and destroy the pages from the OTL [Operating Target Log] and the actual removal and destruction of the pages pertain to criminal conduct in which the appellant was not only actively involved, but initiated, as reflected
in his conviction of Charges I and VI, and therefore, the privilege against compelling self-incrimination excuses his noncompliance with his duty otherwise to report the offenses. United States v. Heyward, 22 M.J. 35 (C.M.A.1986).[1] For the same reason, we disapprove the words in Charge VI to the effect “and fail to make the same known to the civil or military authorities as soon as possible. ” On the other hand, we do not apply the Heyward rationale of excusing noncompliance in regard to consolidated Specifications 1 and 3 because the failure to report as alleged therein pertains to conduct of the conspirators which occurred before the appellant elected to engage in the cover-up, and, therefore, the offenses were completed at a time that the appellant would not have incriminated himself by reporting the conspirators. As such, the consolidated offenses in Specifications 1 and 3 of the Additional Charge neither are preempted by nor are multiplicious for findings or sentencing with the consolidated offenses of Charges I and VI.
5. We do not believe a punitive discharge is excessive where the appellant abdicated his responsibilities as a senior chief petty officer and failed to report to proper authorities evidence of crime in his division of which [sic] he personally observed and further actively assisted the conspirators in concealing evidence of the crime after Naval authorities became aware of such matters.
Accordingly, Charge I and Specifications 2, 3, and 4 of the Additional Charge are set aside and dismissed. Charge I and Specification 3 of the Additional Charge are, incorporated into, respectively, Charge VI and Specification 1 of the Additional Charge, as follows:
Charge VI. Violation of the UCMJ, Article 134.
Specification. In that Senior Chief Machinist’s Mate Lyle V. Hoff, U.S. Navy, Precommissioning Unit Theodore Roosevelt, on active duty, did, on board USS Yosemite, having knowledge that Master Chief Boiler Technician Donald H. Brew[72]*72er, U.S. Navy, Fleet Reserve, Boiler Technician Second Class Frank C. Menn, U.S. Navy, Boiler Technician Second Class Andrew R. Courson, U.S. Navy, and Machinery Repairman Second Class Wade A. Fruge, U.S. Navy, had actually committed a serious offense, to wit: larceny of government property of a value of over $100.00, did, on board USS Yosemite, from about September 1983 to about April 1984, wrongfully conceal such serious offense by wrongfully inducing the said persons to recopy and alter pages from the R-2 Operating Target Log of the USS Yosemite, and by suggesting that if pages torn out of the R-2 Operating Target Log for USS Yosemite were destroyed the Naval Investigative Service would notice the discrepancy.
Additional Charge. Violation of the UCMJ, Article 92.
Specification 1. In that Senior Chief Machinist’s Mate Lyle V. Hoff, U.S. Navy, Precommissioning Unit Theodore Roosevelt, on active duty, did, on board USS Yosemite, between September 1983 and April 1984, violate a lawful general regulation, to wit, Article 1139, U.S. Navy Regulations, dated 26 February 1973, by wrongfully failing to report the conspiracy among Master Chief Boiler Technician Donald H. Brewer, U.S. Navy, Fleet Reserve, Boiler Technician Second Class Frank C. Menn, U.S. Navy, Boiler Technician Second Class Andrew R. Courson, U.S. Navy, and Machinery Repairman Second Class Wade A. Fruge, U.S. Navy, to commit offenses under the Uniform Code of Military Justice, as well as the actual commission of an offense, to wit, conspiracy to commit larceny and wrongful disposition of military property and the actual theft of such property, of a value of over $100.00, said offenses being committed by persons in the Department of the Navy and under the observation of the said Senior Chief Hoff.
(Emphasis added.)
The crime of misprision of a felony, prosecuted under Article 134 of the Code, was well established as a matter of military law. See para. 213/ (6), Manual for Courts-Martial, United States, 1969 (Revised edition); para. 213d (6), Manual for Courts-Martial, United States, 1951. It was based on federal law and required both a failure to disclose the felony of another and the “positive act of” concealing it. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, at 297. The crime of “misprision of serious offense” explained in the present Manual is substantially the same crime. See para. 95, Part IV, Manual for Courts-Martial, United States, 1984; Drafters’ Analysis, 1984 Manual, supra at A21-103.
Appellant was originally charged with and found guilty of the following misprision offense, which alleged that the accused
did, on board USS Yosemite, having knowledge that Master Chief Boiler Technician Donald H. Brewer, U.S. Navy, Fleet Reserve, Boiler Technician Second Class Frank C. Menn, U.S. Navy, Boiler Technician Andrew R. Courson, U.S. Navy, and Machinery Repairman Second Class Wade A. Fruge, U.S. Navy, had actually committed a serious offense, to wit: larceny of government property of a value over $100.00, did, on board USS Yosemite, from about September 1983 to about April 1984, wrongfully conceal such serious offense by wrongfully inducing the said Master Chief Boiler Technician Donald H. Brewer, U.S. Navy, Fleet Reserve, Boiler Technician Second Class Frank C. Menn, U.S. Navy, Boiler Technician Second Class Andrew R. Courson, U.S. Navy, and Machinery Repairman Second Class Wade A. Fruge, U.S. Navy, to recopy and alter pages from the R-2 Operating Target Log of the USS Yosemite and fail to make the same known to the civil or military authorities as soon as possible.
We agree with the Court of Military Review that there was evidence in the record from which the military judge could find [73]*73beyond a reasonable doubt that appellant both concealed and failed to disclose the larceny by his fellow crewmembers. See generally United States v. Hart, 25 M.J. 143 (C.M.A.1987), cert. pending.
Turning to the legal sufficiency of the specification under Charge VI, we do not agree with the court below that the portion of the original specification pertaining to the failure to disclose must be struck because of our decision in United States v. Heyward, supra. The Court of Military Review inadvertently read the words “and fail to make the same known to the civil or military authorities as soon as possible” to refer to appellant’s failure to disclose his own criminal conduct in inducing the thieves to recopy and alter log pages as a coverup. Such a reading overlooks the fact that the offense alleged to be misprisioned in this specification was the larceny of government property. Moreover, by definition, allegation, and proof, that crime was committed by persons other than appellant. Para. 213f (6), 1969 Manual, supra. See para. 95(b)(3) and (c)(3), 1984 Manual, supra. Accordingly, the original specification as charged by the Government, found by the judge, and initially approved by the court below embraced no self-incrimination problem, and it may be reinstated.2 Our action does not warrant any relief as to the sentence.
The second issue in this case concerns appellant’s conviction of the Additional Charge of violating Article 1139, U.S. Navy Regulations. See generally United States v. Reed, 24 M.J. 80 (C.M.A.1987). The Government conceded in oral argument that this offense is multiplicious for findings with the misprision offense. See generally United States v. Baker, 14 M.J. 361 (C.M.A.1983). Since this specification will be set aside on this ground, we need not further address specified issue II.
The decision of the United States Navy-Marine Corps Court of Military Review is reversed as to the modification of the consolidated specification of Charge VI and as to the consolidated specification of the Additional Charge. The modification is set aside, and the words “and fail to make the same known to the civil or military authorities as soon as possible” are restored to the specification of Charge VI (as consolidated). The findings of guilty of the Additional Charge and its consolidated specification are set aside and that charge is dismissed. In all other respects the decision is affirmed.
Judge COX concurs.