(dissenting):
This could be an important case in the world of rental debts for the military — important not only for the stability of the law but for fairness in punishment, since the maximum punishment of larceny is far more severe than the maximum punishment of wrongful appropriation for the identical items.1
*314In this ease, a young serviceman got tangled up with a rent-to-own furniture company. Airman Steven Boddie wanted a TV, a stereo, and some furniture for his family in his new apartment near Laughlin Air Force Base, Texas. ColorTyme Rent-To-Own (ColorTyme) rented these items to Boddie for a monthly fee under several rent-to-own contracts. Under the contracts, Boddie, at the end of paying the monthly fees, would own the TV, stereo, and furniture. ColorTyme, over the contract life, would be paid over twice the retail cost of these items: a good deal for ColorTyme but a bad one for Bod-die!
Boddie’s financial situation worsened, and he sold the TV and the stereo to make ends meet. At his trial for larceny of the TV and stereo, as well as several items of furniture, Boddie was asked by the judge how he expected to get away with selling ColorTyme’s property before the end of the contract term. The following colloquy occurred:
MJ: Okay. So you weren’t going to just take that money [from the sale of the TV and stereo and the furniture] and pay off the rental contract, in which case it would have been yours, or were you doing that?
ACC: What I — It’s kind of two-parted. What I intended on doing was selling the furniture along with the TV and stereo to pay off the rest of my bills so that I’d just have the ColorTyme bill to pay. That way I wouldn’t have to worry about any other bill upcoming. And then I would just continue to pay the ColorTyme until it was actually mine and then they would never know. .
(Emphasis added.)
The three Federal appellate judges of the Court of Criminal Appeals held that this statement at the providence inquiry should have alerted the judge to the legal reality that he was dealing with wrongful appropriation, not larceny. Thus, Boddie’s statements that he would continue to pay ColorTyme until the property “was actually mine” indicated a temporary (not permanent) ownership deprivation of property. This is the main difference between larceny and wrongful appropriation. Thus, I conclude the court below used the facts and case law from their court and ours to properly reduce the charge from larceny to wrongful appropriation. Its reasoning is sound:
It must be recalled that appellant had a valid possessory interest in the chattel so long as he continued to make the payments. Without a doubt, selling property he did not (yet) own to a third-party was a breach of contract with ColorTyme. But a breach of contract, even when it amounts to civil conversion, is legally distinct from larceny.
Long ago we decided that the use of a rental car beyond the terms of the contract could not be the subject of larceny, but only of wrongful appropriation. United States v. McCracken, 19 CMR 876 (AFBR 1955). Despite its antiquity, that case was cited with approval in United States v. Abeyta, 12 MJ 507 (ACMR 1981), which disapproved a conviction for larceny of taxi services. (Abeyta would probably not withstand scrutiny today in light of United States v. Antonelli, 35 MJ 122 (CMA 1992), and Faircloth, [45 MJ 172 (1996) ] but for different reasons than are of concern here.)
The government’s argument spends much of its attention on the wrong element, the wrongfulness of the taking, rather than the intent which accompanies that wrongful taking. Not every nonpermissive taking constitutes a larceny. See, e.g., United States v. Harville, 14 MJ 270, 271 (CMA 1982) (citing United States v. Hayes, [8 USCMA 627, 629-30,] 25 CMR 131, 133-34 (CMA 1958) (borrowing article without prior permission of owner not necessarily violation of Article 121)). There must also be the requisite criminal intent. Id.
Consistent with McCracken, the courts have commonly treated the wrongful with*315holding, or carrying over, of rented or borrowed property to be wrongful appropriation, not larceny. See, e.g., United States v. Jones, 35 MJ 143 (CMA 1992); United States v. Hale, 28 MJ 310, 311 (CMA 1989). In Hale, then-Chief Judge Everett cautioned against blurring the sharp distinctions between contract and criminal law by converting civil derelictions into crimes. Hale had kept a rental car beyond the terms of the contract and had been convicted of its wrongful appropriation and of dishonorable failure to pay the rental contract for the holdover period. This was, of course, a civil conversion, but whether Hale could be convicted of larceny or wrongful appropriation depended upon his intent at the time of the taking, a factor irrelevant to the common law tort of conversion. Id. at 311.
Even in a guilty plea, a matter which calls into question whether an accused has the requisite mens rea requires further exploration on the part of the military judge. United States v. Thomas, 39 MJ 1078, 1079 (CGCMR 1994) (possibility of mistaken belief that rental company would have approved extenuation of contract held inconsistent with guilty plea to wrongful appropriation), pet. denied, 42 MJ 89 (1995).
Returning to the case at bar, there is no question but that appellant’s sale of property he did not own constituted a wrongful taking or withholding, even though so long as he made payments to ColorTyme he maintained valid possession. He was not permitted to alienate the property, for the obvious reason that such alienation impaired ColorTyme’s ownership interest (ability to repossess). However, appellant raised a substantial matter in conflict with the providence of his pleas when he indicated that his intention, at the time he sold the property, was to continue to pay ColorTyme until their contract was discharged. Had he done so, of course, ColorTyme would have been perfectly content. Either way, that intention does not square with an intent to permanently deprive ColorTyme of its use or enjoyment of its property interest. We shall accordingly approve findings of wrongful appropriation and attempted wrongful appropriation in our decretal paragraph.
47 MJ 515, 518-19 (1997).
When I compare the lower court’s opinion with the majority opinion, it is not even close. In my view, the majority opinion is not so well reasoned and rests on a flawed premise taken from a hornbook of civilian law, which is not applicable in the case before us. The majority would hold that an “intent to pay for the property taken or otherwise to restore its equivalent is never a good defense unless there is a substantial ability to do so.” 49 MJ at 312. The majority then applies this “rule” to this case and holds Boddie “had little hope of paying ColorTyme, given his deteriorating financial situation.” 49 MJ at 313. I would point out, however, that there was never any finding of this “fact” of “little hope” in the record of the case or in the opinion of the court below. Thus, as our Court is one of law with no factfinding power, this majority’s “fact” is without basis or legal effect. See Art. 67(c), UCMJ, 10 USC § 867(c) (1994).
Moreover, the majority’s own reasoning is flawed. Airman Boddie had a full-time job— an active duty position in the U.S. Air Fbrce. Perhaps he would have continued to make the ColorTyme payments with proper management of his paycheck. Perhaps the Air Force Aid Society may have given him an emergency loan. The majority’s rejection of Boddie’s intent to continue to pay ColorTyme is therefore without basis in the record. More importantly, if Boddie had intended to keep paying ColorTyme, he could not legally be convicted of larceny under the reasoning of the lower court.
In addition, I note that recent cases from this Court are entirely overlooked by the majority opinion. In United States v. Hughes, 45 MJ 137, 139 (1996), this Court held that “[t]he withholding of another’s property, after lawfully acquiring its possession, is not wrongful in the absence of a fiduciary relationship between the parties.” Moreover, in United States v. Mervine, 26 MJ 482, 483-84 (1988), we held that a debt is *316not a “proper subject” of larceny under Article 121.
At the end of the day, when looking at this case, I am convinced the lower court did the right thing and did not abuse its discretion in lowering the charged offense from larceny to wrongful appropriation. The majority’s rescue attempt to save the Government’s larceny conviction is flawed and could lead to bad law on rent-to-own contracts.2 Accordingly, I would answer the certified question in the negative because the Court of Criminal Appeals did not err. On the granted issue regarding the Ex Post Facto law, I would send the case back to the Court of Criminal Appeals, consistent with my opinion in United States v. Gorski, 47 MJ 370, 376-77 (1997) (concurring in part and in the result). See United States v. Roseboro, No. 98-0439, — MJ — (Daily Journal July 27, 1998) (Sullivan, J., dissenting), and United States v. Keeney, 49 MJ 388, 389 (1998) (Sullivan, J., concurring in part and dissenting in part).
. For instance, the maximum punishment for larceny of property (other than military property) with a value of more than $100 is: a dishonorable discharge, total forfeitures, and confinement for 5 years. Para. 46e(l)(d), Manual for Courts-*314Martial, United States, 1984. The maximum punishment for wrongful appropriation of the same type of property is: bad-conduct discharge, total forfeitures, and confinement for 6 months. Para. 46e(2)(b). Thus, if the majority view of the law prevails there will be a radical sea change in the treatment of this type of crime in the military.
. Further proof that the majority is on the wrong path is a recent case which shows that the militaiy criminal justice system is treating this type of case not as larceny but as wrongful appropriation. See, e.g., United. States v. Richardson, No. 98-0738/AF (1998) (petition pending in this Court). In Richardson, the accused rented a TV/VCR from the Base Exchange, peeled the identification stickers from it that provided, "This belongs to AAFES,” drove to a Sumter, South Carolina, Pawn Shop, and passed off the television as his own to obtain money for gambling. (R. 20, 95). He was charged with and convicted of wrongful appropriation (not larceny) for acts very similar to those in the case at bar.