with whom
CRAWFORD, Judge,joins (dissenting):
24. I acknowledge that judges at all levels can and should exercise judicial discretion. I have a different view, however, regarding how it should be applied in this case. Judicial discretion was exercised by the military judge when he accepted the accused’s pleas of guilty. In my view, the manner in which we, as an appellate court, should exercise our judicial discretion is governed by standards of review. In this case the military judge’s decision should be reviewed under an abuse-of-discretion standard. S. Childress & M. Davis, Federal Standards of Review § 8.03 at 8-12 to 8-13 (2d ed.1992). This standard does not allow us to substitute our judgment or discretion for that of the military judge but rather requires us to uphold the military judge’s exercise of his authority unless we find that he acted arbitrarily, capriciously, or unreasonably.
25. Furthermore, we should conduct our appellate review based on the law and evidence of record, not “suspicion, conjecture, and speculation.” See United States v. Peterson, 1 USCMA 317, 320, 3 CMR 51, 54 ¶ 7 (1952). In my view, any conclusion that appellant’s pleas of guilty to wrongfully appropriating the vehicle was motivated by the charge of larceny of a pistol is speculation. Appellant, represented by presumptively competent counsel, admitted his guilt, provided explanations to the military judge establishing a factual predicate for his guilty pleas, and said nothing inconsistent with guilt. Appellant admitted during the plea inquiry that he knew that the vehicle was not abandoned. He painted phony identification numbers on the vehicle. He knew that he was not authorized to take the vehicle.
26. If appellant unselfishly repaired the vehicle and used it only to transport injured Marines, I would share the sympathy reflected by the majority of this Court. However, we do not know what evidence would have been presented regarding appellant’s taking, modification, and use of the vehicle if the prosecution had presented its case on the merits. See United States v. Harrison, 26 MJ 474 (CMA 1988).
27. In United States v. Kastner, 17 MJ 11, 15 ¶ 9 (1983), this Court held that “motive is not an element of wrongful appropriation.” Thus, a “laudable motive” does not negate criminal intent. 17 MJ at 13 ¶ 6. The mitigating circumstances of appellant’s crime were recognized by the Naval Clemency and Parole Board, which remitted the bad-conduct discharge, and by the Court of Military Review, which affirmed a sentence of no punishment. We have no legal authority to grant further clemency.
*41628. A plea of guilty should not be set aside on appeal unless there is “some ‘evidence in “substantial conflict” with’ the pleas of guilty.” United States v. Stewart, 29 MJ 92, 93 ¶ 7 (CMA 1989). A military judge should not reject a guilty plea unless there is “a ‘substantial basis’ in law and fact for questioning the guilty plea.” United States v. Prater, 32 MJ 433, 436 ¶9 (CMA 1991). There is no legal or factual basis for setting aside the guilty pleas in this case.
29. The lead opinion suggests that, in the absence of a specific prohibition, a service-member may take another’s weapon, field equipment, or vehicle without committing wrongful appropriation, so long as the item is not used for personal gain. I cannot subscribe to this proposition.
30. The lead opinion concedes that appellant wrongfully took the vehicle, 41 MJ at 411 ¶ 8, but concludes that appellant’s responses during the plea inquiry were inconsistent with the intent required for wrongful appropriation. 41 MJ at 413 ¶ 12. I find this conclusion internally inconsistent, contrary to the law, and unsupported by the record. The lead opinion recognizes that the offense requires an “intent temporarily to deprive or defraud another person of the use and benefit of property,” 41 MJ at 411 ¶ 9. Further, the-lead opinion admits that appellant’s responses establish “that appellant intended to deprive the custodial unit of simple possession of an inoperable military asset,” 41 MJ at 413 ¶ 12, but then — by logic which I cannot accept — concludes that appellant’s responses were inconsistent with an intent to deprive the custodial unit of the use and benefit of the property.
31. The lead opinion appears to base this conclusion on the proposition that “[a]n accused must intend to deprive the Government or a unit thereof of more than mere possession of its property in order to be guilty of wrongful appropriation.” 41 MJ at 412 ¶ 11 (emphasis added). This proposition ignores the plain language of the statute, which provides:
Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind ... with intent temporarily ... to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation.
Art. 121, Uniform Code of Military Justice, 10 USC § 921 (emphasis added). There is nothing in the statute which requires an intent “to deprive the Government or a unit thereof of more than mere possession.”
32. The cases cited in the lead opinion to support that opinion’s proposition are inapposite. United States v. Satey, 16 USCMA 100, 36 CMR 256 (1966), and United States v. Graham, 13 CMR 727 (AFBR 1953), both involved situations in which the accused was in lawful possession of the property in question. They do not involve the element of wrongful taking which appellant admitted. They deal with the offense described by Colonel Winthrop as “misapplication,” which is not before us. See W. Winthrop, Military Law and Precedents 708 (2d ed. 1920 Reprint); and 41 MJ at 411 ¶ 10. Appellant never was authorized to possess or use the vehicle.
33. United States v. Satey, supra, was not a guilty-plea case. It was a contested case in which the issue on appeal was whether the instructions were correct. This Court held that the instructions were incorrect because they told the court-martial that expenditure of Imprest Fund moneys in violation of Imprest Fund Regulations constitutes larceny. 16 USCMA at 108, 36 CMR at 264 ¶¶ 29-36.
34. United States v. Graham, supra, was a contested case in which the accused was in lawful possession of a vehicle but deviated from the assigned route. The Board of Review reversed the conviction, finding that the evidence failed to show that the deviation was for personal use and was inconsistent with the official use of the vehicle. 13 CMR at 730 ¶¶ 13 and 12.
35. United States v. Sluss, 14 USCMA 388, 34 CMR 168 (1964), also is inapplicable to appellant’s case, because there was no wrongful taking or intent in Sluss. A maintenance technician drew an item from supply *417channels, later determined it was not needed, and left it in his private vehicle rather than return it to supply. Our Court determined that there was no wrongful appropriation, even though the accused’s acts may have interfered with other maintenance personnel. Sluss is inapplicable to appellant’s case for two reasons: (1) there was no wrongful taking; and (2) Sluss did not take the property from someone with a superior right to possession. Other maintenance personnel had an equal right to the property, but not a superior right. 14 USCMA at 391, 34 CMR at 171 ¶¶ 8 and 9.
36. In United States v. Miles, 11 USCMA 622, 625, 29 CMR 438, 441 ¶ 5 (1960), this Court upheld guilty pleas to wrongful appropriation, based on “scrounging” from another military unit, even though the property remained in government service. Chief Judge Quinn explained his rationale as follows: “By taking the property from one custodian and transferring it to another, the accused effectively deprived the former of his right to possession and subjected him to either criminal or civil liability therefor.”
37. In his separate concurrence, Judge Latimer commented on the notion that “an unlawful taking by a member of one unit or Government department from another agency cannot be theft.” He soundly rejected such an idea, stating, “In fact, merely to state such a proposition is to recognize its absurdity, and anyone even remotely familiar with property responsibility and accountability at various levels of the chain of supply would reject it out of hand.” 11 USCMA at 626, 29 CMR at 442 ¶ 10.
38. Judge Ferguson dissented in Miles, reasoning that the accused was carrying out the orders of his company commander and therefore lacked mens rea. 11 USCMA at 629, 29 CMR at 445 ¶ 18. He neither accepted nor rejected the comments of Chief Judge Quinn and Judge Latimer, set out above. Nevertheless, a majority of the Court found the pleas of guilty provident, based on the accused’s admission that he “scrounged” blankets from another unit for use by his unit.
39. In this case the unit to which the vehicle was assigned was the “owner” and “had the superior right to possession of the property.” See para. 46c(l)(c)(ii), Part IV, Manual for Courts-Martial, United States, 1984. Appellant deprived that unit of the use and benefit of the property. Someone in that unit was responsible and accountable for the vehicle. No one authorized appellant to take the vehicle or even acquiesced in the taking. The unit to which the vehicle was assigned reported it as stolen.
40. The lead opinion’s reference to Chesty Puller’s acquisition of abandoned vehicles, 41 MJ at 413 n. 3, has no relevance to this case. Appellant admitted that he knew the vehicle in question was not abandoned, and he made no assertion of military necessity.
41. The lead opinion makes several factual assertions that are unsupported by the record. It asserts that appellant’s responses during the plea inquiry established that appellant “exclusively” used the vehicle “to assist American war casualties.” 41 MJ at 413 ¶ 12. This language overstates the specificity of appellant’s responses. Appellant told the military judge that he used the vehicle “for the Marine Liaison, not so much for the hospital, sir.” In my view, this language covers everything from official courier use to unofficial trips to the PX and suggests that Marines other than hospital patients may have used the vehicle.
42. The lead opinion also asserts that appellant converted the vehicle “with direct assistance from the U.S. Government (U.S. Navy Seabees).” 41 MJ at 414 ¶ 14. There is no evidence in the record that the Seabees were acting officially or lawfully when they assisted appellant in his conversion of the vehicle or that they knew he had no authority over the vehicle.
43. The lead opinion also asserts that the vehicle’s identification numbers “would allow a clear tracing of this vehicle to himself as the assigned operator.” 41 MJ at 414 ¶ 14. This assertion also is unsupported by the record. The most that a vehicle identification number would show is the unit to which the vehicle was issued, not the assigned driv*418er. An administrative vehicle might have numerous authorized and assigned drivers.
In my view, the lead opinion reaches a conclusion contrary to law and unsupported by the record. Accordingly, I dissent.