(concurring in part and in the result):
I join Judge Crawford’s opinion with these comments.
My greatest concern with Judge Sullivan’s expansive opinion is that it continues to add to the confusion surrounding an otherwise simple concept. In reality, multiplicity is simplicity itself. It is not a new or novel concept in military law. Paragraph 76a(8), Manual for Courts-Martial, United States, 1951, provided:
The maximum authorized punishment may be imposed for each of two or more separate offenses arising out of the same act or transaction. The test to be applied in determining whether the offenses of which the accused has been convicted are separate in this: The offenses are separate if each offense requires proof of an element not required to prove the other____ An accused may not be punished for both a principal offense and for an offense included therein because it would not be necessary in proving the included offense to prove any element not required to prove the principal offense.
Does that language sound familiar? In United States v. Teters, 37 MJ 370, 377 (CMA 1993), quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), we said:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a[*] fact which the other does not.
(Emphasis added).
The multiplicity rule is often called the lesser-ineluded-offense (LIO) rule by some, but should more accurately be called the included-offense rule. It relates directly to Article 79, Uniform Code of Military Justice, *20110 USC § 879. See United States v. Teters,. supra. Thereunder, one cannot prove the greater offense without proving the lesser.
One complicating factor in military jurisprudence is that many offenses are not statutory. Thus, one act or transaction, although not proscribed in an enumerated statute, may nevertheless be charged as an offense under the general articles, Articles 133 and 134, UCMJ, 10 USC §§ 933 and 934, respectively. Likewise, LIOs of enumerated offenses are often found to exist under the general articles. In United States v. Foster, 40 MJ 140 (CMA 1994), and United States v. Weymouth, 43 MJ 329 (1995), we sought to reconcile the Teters doctrine with the simple fact that many offenses prosecuted under military law do not arise out of statutory violations or provisions but, rather, spring from many years of custom, tradition, and common usage. Numerous varieties of misconduct are set forth as prosecutable offenses in Part IV of the Manual for Courts-Martial, United States (1995 ed.), which lists both the elements of proof and the maximum authorized punishments, as well as the commonly included offenses. But even the Manual does not give us an exhaustive listing of offenses or LIOs, although it will solve almost all of the practitioner’s concerns. See Weymouth, 43 MJ at 342 (Crawford, J., concurring in the result). Unfortunately, the Manual does not answer all of the questions. Therefore, it is incumbent upon the practitioner to understand the theoretical underpinnings of the rule.
Some misconduct can also be prosecuted under the general articles even if no model specification appears in the Manual. This practice of charging misconduct as a violation of Article 133 or 134 has been recognized as legitimate by the Supreme Court. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).
In United States v. Foster and United States v. Weymouth, both supra, we were attempting to establish that, in military jurisprudence, the question of whether one act or transaction may constitute two or more separately punishable offenses under the rubric of the general articles does not depend solely upon statutory elements. If that were not true, then we could never have separate offenses under Article 133 or 134, because the express statutory elements are very limited to: (1) conduct; and (2) wrongfulness, expressed as either conduct which is service-discrediting, prejudicial to good order and discipline, or unbecoming an officer. The conduct element would always be the same. The place that you can find “a fact” (see Blockburger v. United States and United States v. Teters, both supra) is in the pleadings.
Using an elements-type test to describe offenses prosecuted under Article 134, we see the following: One act or transaction cannot be made the basis for two or more specifications of a charge under Article 134 unless each specification requires proof of a fact not required to be proved by the other specification. Contrary to popular belief, each specification must have a different fact; it is not sufficient that only one specification has another fact. In every case, the greater offense has at least one more fact than in the lesser offense. That is what causes LIOs.
Although in my view this is not a multiplicity case, in some ways it affords us a good example of the rules. Let us look first at the conduct as described in the stipulation of fact. The accused entered a bedroom with a child-victim, took off his and her clothes, had the child fondle his penis, and placed his finger into the child’s vagina. The accused was believed to have engaged in this conduct numerous times over a 3-month period. He was also believed to have masturbated in her presence on several of the occasions.
The Government elected to charge this “conduct” in two ways, both of which are described in the Manual under Article 134. The physical-touching misconduct is called an “indecent act,” para. 87b(1), Part IV, Manual, supra (1995 ed.), and the masturbation misconduct is called “indecent liberties,” para. 87b(2), Part IV. Interestingly, both are found in paragraph 87, Part IV, and, quite frankly, although an argument can be made that indecent acts require a “touching” and indecent liberties do not, our case law establishes that the difference *202between the two offenses borders on the metaphysical. See United States v. Thomas, 25 MJ 75 (CMA 1987). Indeed, paragraph 87(d) lists “indecent act with another” as an LIO of “indecent acts or liberties with a child.” See also Thomas, supra at 76.
As we apply the rule, first and foremost we find that this is not a multiplicity case. Remember, multiplicity applies only to one act or transaction. The accused was charged with multiple acts on many occasions. Furthermore, proof of each specification is totally independent. Proof of the indecent-liberties specification does not prove the indecent-acts specification, and vice versa.
Even if the offenses arose out of one incident, the rule would still be satisfied. There were two separate and distinct types of acts. The first act was the indecent touching of the child’s genital area; the second was the masturbation. The indecent acts offense is an assault-type crime. Indeed, assault is listed in paragraph 87(d) as an LIO. The indecent liberties offense may be committed without proof of an assault. United States v. Scott, 21 MJ 345 (CMA 1986). Thus, each specification requires proof of a fact not required by the other.
Of course, if the accused had been charged with taking indecent liberties with the child by touching her genital area with the requisite intent in one specification, and in another specification charged with indecent assault on the child by touching her genital area, and in a third specification charged with committing indecent acts with the child by touching her genital area, one would see a classic undue multiplication of the charges. The same proof is required to prove each of the three Article 134 offenses. Likewise, if there was an additional charge under Article 128 of assault consummated by an offensive touching, this too would be multiplicious because, as we said in Teters, no further proof is required.
One last observation. This is a consolidation ease. The Government has elected to consolidate multiple acts and transactions into two specifications. This obviously is not “unreasonable” (see United States v. Foster, supra at 144 n. 4), and it does not represent charging one act or transaction as a violation of two separate statutes (see United States v. Teters, supra). Therefore, although in military jurisprudence we cannot ignore the style of the Charges and specifications in our consideration of multiplicity, we also need not ignore reality in order to set aside the decision below.
See 43 MJ 65, 67 n. 2 (1995), and 45 MJ at 197 n. 7.