under which it might have been laid. (Citing U. S. v. Buckmiller (No. 492), 1 USCMA 504, 506, 4 CMR 96, 98; U. S. v. Larney (No. 775), 2 USCMA 563, 10 CMR 61.) Held also: Footnote 5 applies to violations of general orders or regulations as well as to failures to obey direct, personal orders. United States v. Yunque-Burgos (No. 2848), 3 USCMA 498, 13 CMR 54, reversing CM 362134, 10 CMR 195. Footnote 5, Section 127c, MCM, 1951, as not applicable to punishment for failure to obey orders to report to specified place of duty, see NCM 216, Rodriguez, CHG & SPEC § 34.1. DISRESPECT TOWARD SUPERIOR OR NONCOMMISSIONED OFFICER § 7. Included Offenses. § 15. Evidence, Weight and Sufficiency. § 20. Instructions to Court. § 7. Included Offenses § 7.5. Use of provoking speeches or gestures. Using provoking speech or gestures in violation of UCMJ, Art 117, as lesser included offense of being disrespectful toward a superior officer, see ACM 7678, Nicolas, infra § 20.7. § 15. Evidence, Weight and Sufficiency § 15.1. Generally. The accused was found guilty of using disrespectful language toward two petty officers of the Navy on duty as shore patrolmen. A witness identified the accused by name, testified that he heard the accused use disrespectful language toward the petty officers in question, explained what the language consisted of and stated that at the time of the alleged use of the disrespectful language he was close enough to the accused to have his arm about his neck. Held: The above testimony leaves no doubt that the accused uttered the disrespectful words as alleged. NCM 292, Grudoff (1954) 14 CMR 515. § 20. Instructions to Court § 20.3. Elements of offense, generally. All the witnesses for the prosecution on a trial for using disrespectful language to a superior petty officer in the execution of his office, testified that the accused had been drinking. The accused himself testified that he had been drinking and that he did not recall or remember the events alleged in the specifications; that he had never seen one of the prosecution witnesses; and that he wasn't sure about seeing the other witness. Both the trial and defense counsel referred to the evidence of intoxication in their summation. However, no instructions on the defense of intoxication were given. Held: Intoxication can render an accused legally unable to know that the person to whom the disrespectful words were directed was a superior in the execution of his office (See United States v. Simmons (No. 505), 1 USCMA 691, 5 CMR 119) and accordingly, under the circumstances, the failure to include in the instructions an explanation of the affirmative defense presented by the evidence constitutes error materially prejudicial to the substantial rights of the accused (United States v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45). It cannot be said that no error existed since both the trial and defense counsel, in their argument, correctly argued the proposition of law involved, since, at least in the absence of an instruction that counsel had correctly stated the issue involved, the president, by failing to refer to the affirmative defense, in effect, instructed that drunkenness did not enter into the picture at all. NCM 207, Brown (1953) 9 CMR 608. Failure of law officer on trial for disrespect toward a superior petty officer to instruct on effect of intoxication, see NCM 237, Higgins, ASSAULT § 68.12. Failure to instruct on effect of intoxication where the accused does not rely on intoxication as defense, see NCM 292, Grudoff, ASSAULT § 68.12. Failure to instruct on effect of voluntary intoxication on ability to understand the existence of a relationship of subordinate to superior, see NCM 300, Williams, DISOBEDIENCE § 35.3. Sufficiency of instructions on effect of intoxication and amnesia on knowledge that person toward whom disrespectful language was spoken was superior officer, see United States v. Higgins and United States v. Johnson, TRIAL § 57.9. § 20.7. Included offenses. The accused was found guilty of disrespect towards a superior officer. The specification alleged that the accused did, at a specified place, on or about a specified date, behave himself with disrespect towards a named officer, his superior officer, by saying to him, "Captain D., you are a liar", or words to that effect. The evidence showed that the accused approached the squadron personnel officer and demanded to know why he was not placed on a certain month's rotation roster and that the officer assured him that he was. The accused however became excited and continued the conversation in a loud manner and during the course of the conversation the accused stated to the officer the words alleged above in the specification. The defense requested an instruction on the offense of using provoking speech or gestures in violation of UCMJ, Art 117, but the law officer failed to give such instructions. Held: Failure to give the requested instructions was not error. The language alleged to be disrespectful in the specification also amounted to "provoking" or "reproachful" speech tending to induce a breach of the peace within the meaning of UCMJ, Art 117. (Citing MCM, 1951, par 196; CM 326445, Barnett, 75 BR 223; ACM S-827, Carter, 3 CMR(AF) 801.) It is also apparent that the allegations in the specification above contained all the elements necessary to constitute the offense of using provoking or reproachful language, in violation of UCMJ, Art 117. In view of the foregoing, an application of the test for determining lesser included offenses produces the result that under the particular allegations of the instant case, using provoking or reproachful speech, in violation of UCMJ, Art 117, is a lesser included offense of the offense of being disrespectful to a superior officer in violation of UCMJ, Art 89, alleged in the instant case. (Citing CM 366483, Brown, 13 CMR 161.) However, considering the uncontroverted evidence adduced, including a judicial admission by the accused of his use of the language alleged in the specification, the evidence did not fairly raise any lesser included offense as a reasonable alternative to the offense charged and the failure of the law officer to give the requested instruction was not error. (Citing US v. Baguex (No. 699), 2 USCMA 306, 8 CMR 106; US v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45; ACM 7922, Butts, 14 CMR 596; see US v. McElroy (No. 2262), 3 USCMA 606, 14 CMR 24.) ACM 7678, Nicolas (1954) 14 CMR 683. ENLISTED MEN II. ENLISTMENT, APPOINTMENT, AND INDUCTION. § 19. Enlistments, Generally. § 21. Eligibility and Qualifications. § 25. Minors. § 29. Extension of Term of Enlistment, or Service; Retention beyond Term. § 31. Time Lost from Enlistment. § 33. Re-enlistment. III. PROMOTIONS AND REDUCTIONS. IV. SEPARATION FROM SERVICE. A. IN GENERAL. § 55. Resignation. B. DISCHARGES. § 57. In General. § 73. Conviction by Civil Courts. § 85. Correction, Review, Reconsideration. II. ENLISTMENT, APPOINTMENT, AND INDUCTION § 19. Enlistments, Generally The subject enlisted man was a citizen of the United States at birth but was born in the Philippine Islands. On 6 December 1941, he attempted to enlist in the U. S. Navy and displayed a birth certificate denoting that he was born in the Philippine Islands. He was rejected for enlistment in the U. S. Navy for lack of proof of United States citizenship. He then executed enlistment papers in the U. S. Navy, Insular Force. He was taken as a prisoner of war by the Japanese on 22 September 1943 and repatriated on 4 April 1945, and was thereafter honorably discharged on 30 November 1945. The enlisted man requested the Department of the Navy to clarify his naval status, and the question was presented as to whether, from 6 December 1941 to 30 November 1945, he was a member of the U. S. Navy or the U. S. Navy, Insular Force. The question was also presented as to what would be the result if the enlisted man established his United States citizenship. Held: The enlisted man was a member of the U. S. Navy, Insular Force, between 6 December 1941 and 30 November 1945. His status depends not upon United States citizenship as such but upon: (1) proof of citizenship prior to enlistment in the U. S. Navy, (2) the actual enlistment contract executed, and (3) his eligibility to be a member of the U. S. Navy, Insular Force. It is clear from the facts in this case that he did not prove his citizenship prior to enlistment, that he actually enlisted in the U. S. Navy, Insular Force, and that he was eligible to do so due to the fact that he was a "native" born in the Philippines. (Executive Order, dated April 5, 1901; Art 8-41, Instructions for the |