concurring in result:
The appellant pleaded guilty to four specifications alleging violations of Article 112a, UCMJ. During the providence inquiry, he indicated to the judge that he believed he was guilty. He also provided the military judge with a factual basis for his pleas. The pleas were accepted by the military judge as provident. See United States v. Davenport, 9 M.J. 364 (C.M.A.1980). The appellant properly was advised of the maximum authorized punishment based on the four separate specifications.
On appeal, the appellant contends that the facts he provided require that Specification 3 (distribution of LSD on 25 and 30 October 1995) and Specification 4 (distribution of marijuana on 30 October 1995) be merged because they concerned a simultaneous drug transaction on 30 October 1995. The second LSD transaction could have been included in Specification 4 — possibly rendering that specification as duplicitous. It was not prejudicial error, however, for the government to charge the appellant with a duplicitous pleading by including the second LSD offense in Specification 3.
The appellant providently pleaded guilty to four fifteen-year drug specifications in exchange for a twenty-month confinement limitation in the pretrial agreement. He got what he bargained for. We need not make substantive law on this guilty plea record. See United States v. Byrd, 24 M.J. 286, 293 (Cox, J., concurring in result). We need not determine that the second LSD transaction could have been charged as a separate offense in an additional specification. It was not, and that issue is not before us.
Simultaneous Distribution of LSD and Marijuana
The precise question that we need not address on this guilty plea record is whether Congress intended to provide for separate convictions and punishments for the simultaneous distribution of LSD and marijuana under the provisions of Article 112a, UCMJ. If we address the issue, however, we should do so in accordance with established precedent.
Article 112a, UCMJ, states in pertinent part:
(a) Any person subject to this chapter who wrongfully ... distributes ... a substance described in subsection (b) shall be punished as a court-martial may direct.
*635(b) The substances referred to in subsection (a) are the following:
(1) ... lysergic acid diethylamide [LSD] ... and marijuana, and any compound or derivative of any such substance.
(2) Any substance not specified in clause (1) that is listed on a schedule of controlled substances prescribed by the President for the purposes of this article.
(3) Any other substance not specified in ... [clause (1) or (2) ] that is listed in Schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. § 812).
10 U.S.C. § 912a (emphasis added).
The similar provision in the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 841 provides, in pertinent part:
(a) [I]t shall be unlawful for any person knowingly or intentionally—
(1) to ... distribute ... a controlled substance____
(b) ... any person who violates subsection (a) shall be sentenced as follows:
(1)(A) In the case of a controlled substance in schedule I or II which is a narcotic drug....
(B) In the case of a controlled substance in schedule I or II which is not a narcotic drug.
21 U.S.C. § 841(a) and (b) (emphasis added).
The majority opinion seems to say that because Congress intended to interpret the phrase “a controlled substance” in 21 U.S.C. § 841(a)(1) to allow for a separate conviction and punishment for each illegal drug distributed, then the phrase “a substance described in subsection (b)” in Article 112a, UCMJ, should be construed in the same manner. This is a dubious proposition at best, and a violation of the rule of lenity in applying a criminal statute.
In reviewing Article 112a, UCMJ, to determine whether Congress intended to treat simultaneous distribution of two substances listed in Article 112a(b)(l) as one act or multiple acts for purposes of findings and punishment, we are guided by the rule of lenity. The policy of lenity means that the courts will not interpret a federal criminal statute “so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Lad-ner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958).
The UCMJ provision at issue in this case prohibits distribution of “a substance described in subsection (b).” Was the use of the wording “a substance” intentional and an indication of congressional intent or was it merely a convenient grammatical usage? If the provision had been worded “substances described in subsection (b),” might it have been construed as requiring distribution of two substances before it was violated? If Congress had intended that the distribution of “each” prohibited substance was intended to be a separate offense, then why not use the phrase “each substance described in subsection (b)” to clearly indicate their intent? If they had intended “any” of the prohibited substances to violate the provision, then why not use “any” and avoid the ambiguity? I am satisfied that the use of the word “a” rather than “each” or “any” as a modifier to the word “substance” can not be construed, standing alone, to be any indi-cia of congressional intent. I am satisfied that the wording, standing alone, is ambiguous. The majority opinion apparently agrees with my assessment.
The rule of lenity may be applied to the statute in question, however, only if after reviewing all sources from which legislative intent may be gleaned, the statute remains truly ambiguous. The majority opinion concludes that because several of the federal circuit courts have construed the 21 U.S.C. § 841 provision as intending to permit federal district courts to penalize distribution of “each” controlled substance, the UCMJ provision should be interpreted in a similar fashion.
The majority opinion assertion is based in large part on United States v. Davis, 656 F.2d 153 (5th Cir.1981). That decision was grounded on a dual rationale. First, the court determined that Congress had enacted the statute intending to “give maximum flexi*636bility to judges” in sentencing. Davis, 656 F.2d at 159. If the statute was interpreted in such a way that all controlled substances simultaneously possessed were but one offense, then the sentencing judge would be deprived of flexibility. The second rationale was that the statute, which consolidated over fifty separate statutes, subsumed provisions that clearly were intended to proscribe “each” drug involved in a transaction. It “would be an anomaly” to find that the newer statute was less flexible than prior provisions, “especially in light of Congress’ stated intent of providing trial judges with more flexibility in sentencing.” Davis, 656 F.2d at 159.
However valid these considerations may be when applied to the federal drug statute, they are inapplicable to the UCMJ provision. First, distribution of one drug or many drugs under Article 112a, UCMJ, shall be “punished as a court-martial may direct.” Under Article 56, UCMJ, the punishment that a court-martial may direct for an offense may not exceed the limits that the President prescribes. He could set the maximum punishment based on the number of drugs distributed, who they are distributed to, their potency or tendency to lead to addiction, the quantity or quality of the drugs involved, or any other relevant characteristics that he determines have an adverse impact on the military forces. His flexibility in establishing the maximum sentence for the simultaneous distribution of LSD and marijuana is independent of the construction given to the phrase “a substance” in Article 112a, UCMJ.1 Thus, flexibility in sentencing is neither enhanced nor impeded by the manner in which Article 112a, UCMJ, is interpreted.
Second, no preexisting statutory provisions were subsumed by the UCMJ provision. Cases prosecuted under the UCMJ prior to the creation of Article 112a were based on Articles 92,133, or 134, UCMJ. These cases generally focused on other issues. See MCM, 1995, Article 112a analysis, at A23-10.
Third, Congress knew or should have known at the time of enacting Article 112a, UCMJ, that the phrase “a substance” would create only a single offense even though several drugs might be involved. Only Davis and United States v. Pope, 561 F.2d 663 (6th Cir.1977), are identified by the majority opinion as having addressed simultaneous drug offenses under the federal statute at the time the UCMJ provision was enacted.2 The court in Davis conceded that, but for reference to legislative history, the phrase “a controlled substance” in the federal statute would be interpreted as creating a single punishable offense for possession of two controlled substances. Thus, when the UCMJ provision was enacted, the only federal circuit court that had squarely addressed the issue made it clear that the plain language of “a controlled substance” was not sufficient to manifest congressional intent to create multiple offenses for the simultaneous possession of several controlled substances.
Finally, there are no clear statements in the legislative history of the UCMJ provision that indicate that Congress intended those subject to the UCMJ to be liable for multiple punishments for the simultaneous distribution of LSD and marijuana. The legislative history clearly reveals congressional intent to provide a specific statute to deal with the serious threat that drag abuse posed for military readiness. But that same legislative *637history does not show clearly an intent to provide for multiple punishment for a simultaneous possession or distribution. As the majority opinion correctly states, “where a single federal statute is involved, any ambiguity in congressional intent regarding imposition of multiple punishments for a single transaction must be resolved in the defendant’s favor.” United States v. DeJesus, 806 F.2d 31, 36 (2d Cir.1986)(citing Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)(rule of lenity)).
Each of the preceding considerations indicates that Article 112a, UCMJ, is unlike the related federal statute in significant ways. Thus, the rule of lenity controls in the interpreting the UCMJ criminal provision. Consequently, I would construe the Article 112a, UCMJ, prohibition concerning “a substance described in subsection (b)” by focusing on the seven prohibited acts — use, possession, manufacture, distribution, etc. — rather than on the number of substances involved in the prohibited conduct to determine whether a single offense has been committed. The rule of lenity demands this approach.
. The flexibility in sentencing has been utilized to provide an escalator clause for certain situations, unique to the military, in which drug involvement presents an even greater danger than usual (e.g., while on duty as a sentinel or lookout, or at a missile launch facility). See MCM, 1995, Part IV, para. 37e. Executive Order No. 12383 (Sep. 23, 1982), which amended the maximum punishment in the MCM, differentiated punishment for possession of marijuana based on the quantity possessed, i.e., more or less than thirty grams. The President has not elected to differentiate drug distribution offenses by focusing on either quantity or multiple drug involvement.
. Pope focused on the location of drugs in question being listed as controlled substances on separate "schedules” of 21 U.S.C. § 812. In that case, heroin was a Schedule I controlled substance while methadone was a Schedule II item. The case apparently treated each drug as a separate element of proof justifying multiple punishment for different offenses. Military cases have not taken this approach. Furthermore, both of the drugs involved in this case are in the same subparagraph of the military provision — Article 112a(b)(l).