(concurring in part and dissenting in part):
It appears that both parties and the military judge assumed that, if appellant was lawfully married under the laws of South Carolina, it would have something to do with the outcome of this case. It would not.
Appellant was charged, inter alia, with stealing monies from the United States Government. Art. 121, Uniform Code of Military Justice, 10 USC § 921. In pertinent part, that statute provides:
(a) 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—
*288(1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny____
(Emphasis added.)
The pertinent Department of Defense (DoD) Directives and Air Force Regulations provide a comprehensive manner in which marital and family benefits may be obtained. It is clear from these rules that entitlements are based upon proper presentation of the claim for government determination of validity. The same rules that authorize payments also vest the Government with the responsibility to determine eligibility.
For example, under the rubric, “RULES FOR DETERMINING RELATIONSHIP AND DEPENDENCY,” paragraph 30232 of the DOD Military Pay and Allowances Entitlements Manual (hereafter Pay Manual) provides:
A member’s lawful spouse and legitimate, unmarried, minor children are at all times considered dependents for BAQ purposes ____ A determination of relationship is required____
(Emphasis added.)
Further, paragraph 30233 of the Pay Manual, supra (“Validity of Member’s Marriage”) provides:
Any case where the validity of a member’s marriage is questioned is considered a case of doubtful relationship. Cases in this category include:
d. Common-Law Marriages. Under laws of certain states, an informal (common-law) marriage may be entered into by persons who do not obtain a license to marry or go through certain other formalities. Common-law marriages entered into in those states are considered valid if they are contracted in accordance with state law.
Paragraph 30233f(3) of the Pay Manual, supra (“Determinations and Validations”) even identifies the appropriate offices for the respective services to “[sjubmit requests for determination on validity of a marriage or for validation of payments.”
Other such benefits obtained by appellant had similar prerequisites. See para. 30114, Pay Manual, supra; para. 41-2a.(2), AFM 177-373 (Vol. I (Change 3) 1 Oct 1989).
Did appellant make such a proper presentation? Did he walk in the door and honestly report his claim to marital benefits on the basis of a common-law marriage? Obviously not. Had he forthrightly presented his claim of common-law marriage, there was an established procedure to resolve it. If he needed a court interpretation at that time, he could have gotten it. Instead, he knowingly tendered a false and altered document — reflecting that he had undergone a ceremonial marriage — and he made numerous other fraudulent representations and presentations. As a result of these knowingly false representations and documents, appellant obtained the monetary benefits in issue.
Clearly, under any construction, appellant “wrongfully” took or obtained the monies. Cf. United States v. Antonelli, 35 MJ 122 (CMA 1992), on further review, 43 MJ 183 (1995). The fact that, ex parte to the Government, he got a State court to declare him retroactively married says nothing about how he took or obtained the monies. The related charge of conspiracy was equally valid under similar analysis.
However, the larceny and conspiracy charges are gone, as the military ¡judge acquitted appellant 'of both of them, finding him guilty instead of the nonsensical charge of “attempted conspiracy.” How does one attempt to conspire? Since the essence of conspiracy is a criminal agreement, is it that one strains to reach an agreement with somebody, but fails? Is that what happened here? And if conspiracy and attempts are both inchoate crimes, but conspiracy “attacks inchoate crime at a far more incipient stage” than attempts, 2 W. LaFave and A. Scott, Substantive Criminal Law 68-69 (1986), how did attempts suddenly leap ahead of conspiracy again? See also § 5.03, Comment, ALI Model Penal Code, reprinted in ALI Model Penal Code and Commentaries (Part I) 387 *289(1985). Does this mean we will soon be seeing charges of conspiring to attempt to conspire to commit an offense — to be followed by attempting to conspire to attempt to conspire to commit an offense, ad infinitum?
Obviously, as suggested by Judge Gierke (herein and in United States v. Anzalone, 43 MJ 322, 326-27 (1995) (Gierke and Cox JJ., concurring in the result)), the correct answer is that the only “attempt to conspire” is the wholly separate offense of solicitation. But even though there is a solicitation within every conspiracy, not every participant in every conspiracy is a solicitor. It is possible to be a solicitee. Here, the Government did not allege or prove that appellant was a solicitor, so that offense is not now available as a fall-back.
In my opinion, it is not worth confusing the law of conspiracy just to nail a petty thief. Accordingly, I vote with Judge Gierke to set aside the attempted conspiracy conviction and to return the record to the court below for sentence reassessment.