(dissenting):
In this case, criminal law developed centuries ago runs headlong into late 20th Century technology. The challenge before this Court is to reconcile the law of larceny (and its lesser included offense of wrongful appropriation, both punished under Article 121, UCMJ1) with a modern world of credit cards, computers, and automatic teller machines, while preserving the law’s underlying principles. Regrettably, the lead opinion fails in this task. Instead, the majority has gone beyond the intent of Congress, and effectively merged the law of larceny into the civil law of breach of contract. I cannot agree with this mutation of the criminal law. Therefore, I respectfully dissent.
I. ARTICLE 121, UCMJ
Article 121 states, in pertinent part:
(a) Any person ... 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—
(1) with intent permanently to deprive or defraud ... steals that property and is guilty of larceny; or
(2) with intent temporarily to deprive or defraud ... is guilty of wrongful appropriation.
(Emphasis added).
Thus, Article 121 “consolidates what had been known as common-law larceny (that is, larceny by trespass on either the actual or constructive possession of the owner), embezzlement, and obtaining by false pretenses— no more, no less____” United States v. Antonelli, 35 M.J. 122, 124 (C.M.A.1992). Congress did not intend Article 121 to address anything beyond the perimeter of these three “predicate offenses.” Id. at 126. Bottom line—unless the appellant’s conduct would have been either larceny by taking, embezzlement, or obtaining by false pretense at common law, it is not larceny under Article 121.
II. LARCENY BY FALSE PRETENSE
Both the appellant and the government agree that, if the appellant’s conduct violates Article 121 at all, it does so under a “wrongful obtaining” theory as a larceny by false pretense. The lead opinion accepts this premise, and so do I. In Antonelli, the Court of Military Appeals counseled against constructing analytical barriers between the three larceny variations when reviewing Article 121 convictions.2 Notwithstanding, I see no plausible argument that the appellant’s actions constitute larceny under either a wrongful “taking” or “withholding” theory. Therefore, we must look to the law of larceny by false pretense to see if the appellant’s actions fit into Article 121.3
*743The law of “false pretense” is fairly summarized at MCM, Part IV ¶ 46c(l)(e) (1984):
With respect to obtaining property by false pretense, the false pretense may be made by means of any act, word, symbol, or token. The pretense must be in fact false when made and when the property is obtained, and it must be knowingly false in the sense that it is made without a belief in its truth. A false pretense is a false representation of past or existing fact. In addition to other kinds of facts, the fact falsely represented by a person may be that person’s or another’s power, authority, or intention____ Although the pretense need not be the sole cause inducing the owner to part with the property, it must be an effective and intentional cause of the obtaining ____
(Emphasis added). See also United States v. Dean, 38 M.J. 505, 510 (A.F.C.M.R.1991), and cases cited therein. Distilling this general rule into its essential components, the crime of larceny by false pretense requires that:
1. An accused make a false representation at the time of the obtaining; and
2. Such representation must, in some way, induce the owner to part with his, her, or its property.
The lead opinion holds, as a matter of law, that the appellant implicitly represented to an automatic teller machine (ATM) that his cash advances on the Diners Club card were for official Air Force business, and that Air Force authorities had approved the advances. The majority also finds beyond a reasonable doubt that the alleged victim of the larceny (Citicorp Diners Club), through the electronic and mechanical agency of the ATM, had been induced to part with its money because of such implied representations. I disagree on both counts.
III. APPELLANT’S FALSE “REPRESENTATIONS”
I agree with the majority that a person may imply some representations at the time he or she obtains property or services. It is well established that users of credit or ATM cards implicitly represent they are the persons to whom the cards were issued. See, e.g., United States v. Fairley, 27 M.J. 582 (A.F.C.M.R.1988); United States v. Cannon, 26 M.J. 674 (A.F.C.M.R.1988); United States v. Burge, 25 M.J. 576 (A.F.C.M.R.1987); United States v. Pulliam, 17 M.J. 1066 (A.F.C.M.R.1984). Similarly, someone using another’s telephone to make direct-dial toll calls implicitly represents to the telephone company that he or she has the authority to do so. United States v. Flowerday, 28 M.J. 705 (A.F.C.M.R.1989). I do not quarrel with the Navy-Marine Court of Military Review’s holding in United States v. Christy, 18 M.J. 688 (N.M.C.M.R.1984), which affirmed a marine’s larceny conviction for using a government credit card to purchase gasoline for his personal use. The Navy-Marine Corps court primarily relied on a “taking” theory—because the gas was billed to the government, its possessory interest in the gas was superi- or to that of the accused, who then “took” the gas by using it for personal errands. To the extent that court may have also relied on a “false pretense” theory, I would still agree with the result. When a principal gives an agent a credit card and authorizes certain uses which obligate the principal to pay the bill, I have no difficulty inferring a representation of authorized use whenever the agent presents the card. The common thread running through all these cases is that the implied representation concerns the user’s fundamental authority to use the card. In other words, the implied representation is that the user is the account holder, or has the authority to obligate the account holder.
Here, the appellant was the account holder. His use of the Diners Club card obligated only himself. Appellant’s wrong was not in his fundamental authority to use the card. Rather, he erred by using the card in a manner contrary to his contract with Diners Club, which required that he use the card only for official business and have Air Force approval for any cash advance. The majority imputes to the appellant, as a matter of law, an implicit representation that he was in *744compliance with these agreements whenever he used the card at an ATM. In so holding, the majority goes far beyond any precedent I have been able to locate, and expands the reach of Article 121 to conduct which Congress did not intend that article to address.
If this exercise in judicial legislation is allowed to stand, I fear we will have cracked open a “Pandora’s Box” of potential Article 121 liability for garden variety breaches of contract. Many credit cards allow card holders to maintain a balance up to a maximum amount. If “Airman Able” uses his credit card, knowing that he will exceed his credit limit, does he violate Article 121? According to the majority, he does. The Diners Club ATM program agreement restricts ATM withdrawals to three per day, even if cash advances are otherwise approved. If “Lieutenant Baker” knowingly makes four ATM withdrawals one day, is she automatically guilty of the crime of wrongful appropriation? Again, the majority says she is. To be sure, these actions are breaches of contract, and justify civil and administrative remedies. As I will discuss below, they may also support prosecution under other articles of the UCMJ. But as for Article 121,1 believe it is flat wrong to hold that card holders implicitly represent compliance with all covenants in their credit contracts whenever they use the card. Simple breach of contract is not what the common law or Congress envisioned for the crime of obtaining by false pretense.4
IV. THE “INDUCEMENT” OF CITICORP DINERS CLUB
Even if I were to join in the majority’s fusion of larceny and contract law, I am unable to find a shred of evidence that Citicorp was at all induced to part with its money because of the appellant’s “representations.” The lead opinion passes off this issue with a one-sentence reference to the terms of the contract as “sufficiently clear and unambiguous for a factfinder to conclude that the money would not have been provided absent the misrepresentation,” and a citation to United States v. Marrelli, 4 U.S.C.M.A. 276, 15 C.M.R. 276 (1954), a larceny by check case that has nothing to do with credit cards or debt.5 I see nothing in the credit agreement that remotely supports the majority’s conclusion. Common sense points to the contrary. If “Sergeant Charlie” gives her credit card to a server at a restaurant, does the server worry whether “Charlie” has complied with all the terms of her agreement with the card company? Does the server even know what the contract says? Does he care? These answers are obvious—the only thing the restaurant cares about is whether the card is valid and the customer is a lawful user. If a human being has no interest in the terms of the credit contract, how can we impute such a concern to an ATM?
This musing aside, even if the majority’s assumed inducement is true, there is nothing in the record to show it. In passing on the legal and factual sufficiency of the evidence, we are limited to what was presented at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.1993). This record is devoid of evidence explaining how the ATM may have been induced to spit out dollars in reliance on implied representations by the appellant concerning the purpose and Air Force approval of the cash advance. I do not believe any reasonable trier of fact should have convicted the appellant of either larceny or wrongful appropriation. Therefore, I find the evidence is not legally sufficient to support the findings. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979). Even assuming legal sufficiency, the evidence still does not persuade me, beyond a reasonable doubt, that the appellant is guilty *745of larceny. Article 66(e), UCMJ;6 United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987).
Y. CONCLUSION
Readers should not construe my opinion as condoning the misuse' of Air Force-issued travel cards. I understand the purpose behind the program. I accept that the military has an interest in deterring and punishing misuse of the cards. However, the armed forces have ample legal means to do so without misshaping the criminal law.7 Although not charged here, I am confident the prosecution could have presented sufficient evidence to convict the appellant under either clause (2) or (3) of Article 92, UCMJ.8 If there is no punitive general regulation currently on the books to support prosecution of travel card misuse under Article 92(1), it is certainly in the Air Force’s power to publish one.
Even without an Article 92 charge, this appellant provided the government with a smorgasbord of options for punishing his conduct. When confronted with the apparent misuse of the card, the appellant lied to his first sergeant. He also threw away all the Diners Club bills. Yet he was never charged with false official statement (Article 107, UCMJ9) or obstructing justice (Article 134, UCMJ10). Appellant could have been charged with dishonorably failing to pay just debts (also a violation of Article 134) based on the more than $4,000.00 in ATM advances he failed to acknowledge and pay. Yet he was not charged with that offense for the ATM advances. Appellant was charged and convicted, consistent with his pleas, of two specifications of dishonorably failing to pay just debts resulting from other uses of the Diners Club card. However, the convening authority set aside these findings. Thus, the government chose to put all of its eggs in the Article 121 basket.
Unless we affirm this conviction, the appellant walks—surely an unattractive result in the face of such abundant dishonesty. Nonetheless, I invite attention to Justice Harlan’s time-honored admonition 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)). It is bad law to create a new form of larceny by false pretense where none existed before. It is bad law to affirm a conviction for larceny by false pretense where there has been no proof of inducement. For the general good of the military community, I dissent. I would set aside the approved findings and sentence, and dismiss Charge II and its specification.
. 10 U.S.C. § 921 (1994).
. “[T]he fine subtleties that had conceptually (if not always logically) distinguished [the three common law offenses] are not material to guilt or innocence under Article 121 [footnote omitted].” Id. at 124.
. In his concurring opinion, the Chief Judge does not agree that the appellant’s conviction must rest on an "obtaining by false pretense” theory, pointing out that Article 121 abolished the distinctions between the three common law offenses. In this latter point, the Chief Judge is correct. However, if the Chief Judge perceives this dissent to be just an exercise in pettifoggery over these distinctions, he is much mistaken. My problem with the majority holding is that it expands larceny and wrongful appropriation beyond any variation of those offenses addressed *743within Article 121. Of the conduct which is properly within the scope of Article 121, the only theory arguably applicable on these facts is "obtaining by false pretense.”
. In his concurring opinion, the Chief Judge focuses on evidence of the appellant's intent when he used the Diners Club card at the ATM. The Chief Judge’s opinion fails to recognize that, before intent becomes an issue under Article 121, the appellant must have first wrongfully obtained the money. To reach that threshold conclusion, the lead opinion imputes to the appellant a representation that he is in compliance with the terms of his credit agreement whenever he used the card. This is where the majority and I part company, and not the issue of appellant's intent.
. Query: Would the result in Marrelli have been the same if the accused in that case had "overdraft protection” for his checking account, allowing him to write checks for more than his balance in return for his promise to repay the debt?
. 10 U.S.C. § 866(c) (1994).
. The Chief Judge states my opinion "suggests that, because appellant was issued a credit card pursuant to the Diners Club Government Card program, he could use the card in any manner he chose." I suggest no such thing. I only disagree with the majority's view that the appellant's conduct violated Article 121.
. 10 U.S.C. § 892 (1988).
. 10 U.S.C. § 907 (1988).
. 10 U.S.C. § 934 (1988).