(concurring in part and dissenting in part):
I agree with the well-reasoned opinion of the United States Navy-Marine Corps Court of Military Review in United States v. Anzalone, 40 M.J. 658 (NMCMR 1994), holding that “attempted conspiracy” is not an offense under the Uniform Code of Military Justice. Accordingly, I would set aside the findings of guilty and dismiss Charge II and its specification. I would affirm the remaining findings of guilty.
I have reservations about affirming the findings of guilty to specifications 3-6 of Charge III (attempted false official statements). Because the state court order retroactively validated the accused’s common law marriage to a date prior to the official statements, it was legally impossible for the accused to have committed the offense of false official statement. See United States v. Allen, 27 M.J. 234 (C.M.A.1988). The only reason the accused may be convicted of attempting to make false official statements is the Court of Military Appeals’ decision in United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278 (1962). In that case, the court held that Congress had intended Article 80, UCMJ,1 to punish conduct as an attempt to commit an offense, even if it was legally impossible for the accused to have committed the substantive offense. I question this conclusion. While some commentators may criticize the distinction between legal and factual impossibility as they relate to “attempt” crimes, there can be no question — as the Thomas court conceded — that the consensus of authority at the time Congress passed Article 80 was that the legal impossibility of committing a substantive offense also prevented conviction for an attempt to commit that offense. Thomas, 32 C.M.R. at 283. The proper basis for construing a UCMJ article is the common law at the time of its enactment. United States v. Thompson, 32 M.J. 65, 67 (C.M.A.1991) (Sullivan, C.J., concurring), citing United States v. Knight, 15 M.J. 202, 205 (C.M.A.1983), and United States v. Kluttz, 9 U.S.C.M.A 20, 25 C.M.R. 282, 284 (1958). See also United States v. Mervine, 26 M.J. 482, 485 (C.M.A.1988) (Everett, C.J., concurring); United States v. Banta, 26 M.J. 109, 111 (C.M.A.1988); United States v. Acevedo-Velez, 17 M.J. 1, 6-7 (C.M.A.1983); and United States v. Metcalf, 16 U.S.C.M.A. 153, 36 C.M.R. 309, 314-315 (1966). Cf. United States v. Burroughs, 12 M.J. 380, 382 n. 3 (C.M.A.1982). My review of the legislative history of the Code reveals no evidence Congress intended Article 80 to modify the common law of attempts. Absent an expression of such intent, I believe Article 80 incoiporates the eommon law doctrine that legal impossibility of committing an offense also negates conviction of an attempt to commit that offense.
It makes little sense to me to hold someone criminally liable for attempting to commit an offense which, under the circumstances, it is legally impossible for him to have committed. I believe the United States Court of Appeals for the Armed Forces (as the Court of Military Appeals has been recently renamed) should revisit this issue. Although I disagree with Thomas, that decision is stare decisis and I defer to it until it may be overruled. Accordingly, I would affirm the appellant’s convictions for attempted false official statements.
I am fully aware that my views on “attempted conspiracy” and legal impossibility would provide the appellant with yet another legal “escape hatch” to avoid complete responsibility for what the evidence shows to have been a deliberate scheme to defraud the United States. However, the/military judge accorded full faith and credit to the state court decree despite evidence that it had been obtained by fraud, and therefore .acquitted the appellant of the substantive allegations. These findings of not guilty, of course, are final. In seeking to fashion a form of justice for this young thief from the military judge’s attempt convictions, we should be mindful of Justice Harlan’s time-honored ad*678monition to “take care, for the general good of the community, that hard cases do not make bad law.” United States v. Clark, 96 U.S. 37, 49, 24 L.Ed. 696 (1878) (Harlan, J., dissenting) (quoting East India Co. v. Paul, 7 Moo. 85, 111, 13 Eng.Rep. 811, 821 (P.C. 1849)). I believe Thomas made bad law in casting aside the legal impossibility doctrine to affirm an attempt conviction in a “hard case.”2 I believe the majority holding in this “hard case” also makes bad law by recognizing “attempted conspiracy” as an offense.
Because I would set aside the appellant’s conviction for attempted conspiracy, I would reassess his sentence. I would not approve a sentence in excess of a bad-conduct discharge, confinement for six months, and reduction to E-l.
. 10 U.S.C. § 880 (1994).
. In Thomas, two sailors had been convicted of attempted rape after their court-martial concluded their victim had already died of a heart ailment at the time of penetration, thus preventing their conviction for rape — in the words of the court, “a sordid and revolting picture.” 32 C.M.R. at 280.