(dissenting):
Similar eases should be resolved in a similar manner. This ease should be decided in appellant’s favor on the basis of this Court’s decision in United States v. Hughes, 45 MJ 137 (1996). There, Judge Robertson, writing for a majority of this Court, held that the “from the possession of’ element of wrongful appropriation is not satisfied as a matter of law where other than a fiduciary relationship exists and a change of possession lawfully occurred prior to the charged act. Here, the uncontroverted evidence of record shows appellant had a general power of attorney over PFC Clare’s funds, as well as oral discretionary authority to apply those funds to his own use.
The power of attorney permitted appellant to
lease, sell, use, establish title to, register, insure, transfer, mortgage, maintain, manage, pledge, exchange or otherwise dispose of or encumber any and all of [PFC Clare’s] property, real, personal, or mixed....
Additionally, the power of attorney allowed appellant to
demand, act to recover, and receive, all sums of money which are now or will become owing or belonging to [PFC Clare], and to institute accounts on [PFC Clare’s] behalf, and to deposit, draw upon, or expend such funds of [PFC Clare] as are necessary in furtherance of the powers granted herein. This shall include, but not be limited to, the authority to receive, endorse, cash, or deposit negotiable instruments made payable to [PFC Clare], and drawn upon the Treasurer, or other fiscal officer or depository, of the United States.
Finally, the general power of attorney contained a catch-all phrase which provided that the “described powers are merely examples of the authority granted by this document and not in limitation or definition thereof.” In my view, this legal document indicates that a lawful change of possession of PFC Clare’s bank funds occurred.
I note further that other evidence of record suggests appellant did not have a strict fiduciary relationship towards PFC Clare’s money. PFC Clare testified that he gave appellant oral permission to withdraw money from his bank account for some personal use and placed no limit on the amount of money appellant could borrow. PFC Clare testified:
A. ... I had stated that he could, if he was low on cash, borrow money. I used the example for food, cigarettes and stuff like that.
Q. And did you give him any other instructions about what he couldn’t use it for?
A. Not really, ma’am. I just gave him — I just let him know that if he did need money that he could borrow some as long as he paid it back.
Q. Did you say anything to him about letting you know?
A. Yes, ma’am. That if he did to, again, take the receipts from the ATM and send them to me.
Q. Now, tell the military judge exactly what you told him, using the examples that you used, as if the military judge is Specialist Willard.
A. Yes, ma’am. Go ahead — I need my bills paid. You know that they need to *151[be] paid in cash on certain days. If you do, for some reason, happen to get low on cash, you know, and you need some money, you need cigarettes or something, go ahead and go into the account and take some money out as long as you send me the receipt and pay it back, so I know about it and I can balance my checkbook.
Thus, the problem with the opinion of the majority is that our decision in Hughes, plus the facts of this ease (a general power of attorney and a verbal authorization to use PFC Clare’s funds anytime as a personal loan) negate the wrongful taking element and the intent element of the charged crime. It was very telling at oral argument when the Government could not state the exact moment of the crime. One should always be able to define when a crime occurred.
In addition, Investigator Ivanoff, a government witness, testified that appellant told him he intended to pay the money back at the time he withdrew it from PFC Clare’s account. Furthermore, although PFC Clare required appellant to give an accounting for the amount of money he borrowed, and appellant failed to do so, PFC Clare neither “put a cap” on the amount appellant could borrow nor indicated a due date for the accounting. Finally, appellant never attempted to conceal the fact that he borrowed money from PFC Clare’s bank account, and he repaid all the money due by the time PFC Clare returned from Haiti. See para. 46c(l)(f)(ii), Part IV, Manual for Courts-Martial, United States (1995 ed.).
These facts suggest to me that appellant’s acts were not wrongful as a matter of law, and that he did not intend to steal any money from PFC Clare. Cf. United States v. Har-ville, 14 MJ 270, 271 (CMA 1982)(mere borrowing of an item without prior consent of the owner does not per se constitute wrongful appropriation absent criminal intent). The powerful horse of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), that the majority attempts to ride to an affirmance in this case has two legs (or elements of the charged crime) missing. Accordingly, I dissent from the majority’s upholding of a conviction which is contrary to established legal precedent of this Court.