(dissenting):
Since its early days, the then-Court of Military Appeals has labored to delineate the circumstances under which offenses were separable for purposes of pleading and punishment. See, e.g., United States v. Redenius, 4 USCMA 161, 15 CMR 161 (1954). Even as the Court has taken a new title, see — U.S.-,-n. 1, 115 S.Ct. 2031, 2034 n. 1, 132 L.Ed.2d 136 (1995), it still has not completed this task — as the divergence and length of opinions in this case makes clear.
Rather than complicate the relevant issues unduly, I shall be brief in my views. In the first place, this case involves no issue of double jeopardy, for the accused was prosecuted only once; and the Fifth Amendment comes into play only when there are successive trials. Cf. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, our primary concern must be with legislative intent; and on this point the Blockburger test provides guidance. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Rutledge v. United States, — U.S. -, 116 S.Ct. 1241,134 L.Ed.2d 419 (1996).
Unfortunately, in the present context, applicability of Blockburger is obscured by the generality of the language of the first two clauses of Article 134, Uniform Code of Military Justice, 10 USC § 934. These clauses refer to conduct “to the prejudice of good order and discipline in the armed forces” or “of a nature to bring discredit upon the armed forces.” This same language appears in the discussion of the elements of both “indecent acts” (¶ 87b(1)(e)) and “indecent liberties” (¶ 87b(2)(f)) in Part IV of Manual for Courts-Martial, United States, 1984, that was in effect at the time of this trial. Thus, it is possible to argue that, if committed at the same time with the same victim, an “indecent act” and an “indecent liberty” were nothing more than a single offense within the contemplation of Congress — that offense being “disorderly or service-discrediting conduct.” Of course, the same argument could be made with respect to any other act that was not a violation of Articles 77-132, UCMJ, 10 USC §§ 877-932, respectively, that was service-discrediting or disorderly, and occurred at the same time and place.
Since such an interpretation goes beyond what I believe Congress intended, I must search for a rationale in differentiating one violation of Article 134 from another. In this regard, Manual language provides some guidance. Thus, the majority in the court below found the following relevant:
Manuals for courts-martial prescribed by the President have recognized “indecent acts with a child under the age of 16 years” as an offense for more than 40 years. Its application to the Air Force predates the adoption of the UCMJ. Compare United States v. Brown, 3 USCMA 454, 13 CMR 10 (1953) and Manual for Courts-Martial, United States, 1951 (MCM, 1951), ¶ 213 with United States v. Hopp, 4 CMR (AF) 706 (AFBR 1951) and Manual for Courts-Martial, U.S. Air Forces, 1949 (MCM (AF), 1949), ¶183c. The model specification and manual guidance for indecent acts with a child were *206drafted from a District of Columbia Code provision. Brown, [3 USCMA at 456,] 13 CMR at 12; Hopp, 4 CMR (AF) at 715-16. Like the District of Columbia Code offense, the pre-1984 manuals for courts-martial described the prohibitions against indecent liberties with and indecent acts upon children as one offense. MCM, 1969 (Rev.) ¶ 213f(3); ¶213(3); MCM (AF), 1949, ¶ 183c. The earliest judicial interpretation by the Court of Military Appeals is consistent with the notion that indecent acts or liberties with a child is one offense, not two. Brown, [3 USCMA at 456-61,] 13 CMR at 12-17. Although the current MCM lists the elements for indecent acts and indecent liberties separately, like its predecessors it provides only one sample specification. MCM, Part IV, ¶ 87b and f.
40 MJ at 749-50.
These circumstances persuade me — as they did the majority below — that when Airman Neblock inserted his finger into his victim’s vagina, placed her hands on his penis, exposed his penis, and masturbated in her presence, he committed a single offense for purposes of punishment. Moreover, the maximum punishment permitted for that offense would be that permitted for committing an “indecent act” (¶ 87e) — which would be more serious than for taking “indecent liberties” (¶ 87e).
If, however, on two separate occasions Airman Neblock had touched his victim’s vagina, he would have committed two separate indecent acts with her. Likewise, if on two separate occasions he had exposed his penis and had masturbated in her presence without any touching, there would have been two offenses of taking indecent liberties. Finally, if on one occasion he had touched his victim and on another occasion he had masturbated in her presence, these would have been two separate offenses- — an indecent act in one instance and taking indecent liberties in another. In all three situations I have described, the offenses are separate, regardless of whether they are motivated by a simple impulse or are part of a “course of conduct,” as long as there is some appreciable separation of time or place between the offenses.
Accordingly, in this case the accuser had the option to charge Airman Neblock in a number of specifications corresponding to the different occasions on which there occurred an indecent act, indecent liberties, or both. However, if both occurred on the same occasion, only a single punishment could be imposed. The only limitation on the accuser’s discretion would be the Manual’s prohibition against unreasonable multiplication of charges. See ROM 307(c)(4) Discussion, Manual, supra*
Instead of multiplying the charges by separately alleging each incident, the accuser chose to group the incidents into two specifications — alleging in one instance that Airman Neblock had committed “indecent acts” with the victim between two specified dates and in the other that he had taken “indecent liberties” with her “on divers occasions” between those same two dates. Frankly, I applaud this practice — followed extensively in the Air Force — of grouping offenses, rather than alleging them in a multitude of specifications. Of course, an accused can move to sever the specification — and thereby increase the maximum punishment imposable — but seldom would this be done.
Once the accuser has elected to group the offenses in this manner, I conclude that this election carries with it the consequence that only one of the specifications can be used as the basis for punishment. Thus, I reach the same conclusion as did the majority below. I concede, however, that a convincing argument can be made for the result that is reached by the other members of this Court.
Conceivably the undue multiplication of charges could result in a sentence which violated the Eighth Amendment or Article 56, Uniform Code of Military Justice, 10 USC § 856.