(concurring in the result):
I believe the specification at issue alleges the terminal element by necessary implication. Accordingly, I find no error and concur in the result reached by the majority.
When a specification does not expressly allege an element of the intended offense, appellate courts must determine whether the terminal element was necessarily implied by interpreting the text of the charge and specification. United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F.2011). While the developing trend in recent cases seems to disfavor the interpretation of specifications in such a manner as to find an element is alleged by necessary implication, military jurisprudence is still a notice pleading jurisdiction and the law remains that an element may be alleged by necessary implication. United States v. Nealy, 71 M.J. 73, 77-79 (C.A.A.F.2012); Fosler, 70 M.J. at 229.
Neither the RULES FOR COURTS-MARTIAL, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), nor case law actually define the term “necessary implication,” but the Court of Appeals for the Armed Forces recently explained that we are not permitted to “necessarily imply a separate and distinct element from nothing beyond allegations of the act or failure to act itself.” United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F.2012) (internal quotation marks omitted). In my view, whether a specifica*541tion alleges an element by necessary implication depends on: (1) the level of tolerance with which reviewing authorities read the specification, and (2) the facts stated within the specification.
Recent eases indicate a range in the levels of scrutiny that appellate courts should apply when interpreting the text of a charge and specification; the circumstances of the appellant’s pleas determine the appropriate level of scrutiny. At one end of the spectrum, the highest level of scrutiny applies in contested cases where the charge and specification are first challenged at trial, the text is read narrowly and courts “will only adopt interpretations that hew closely to the plain text.” Fosler, 70 M.J. at 230. At the other end of the spectrum, in the case of a guilty plea where the appellant raises the validity of a specification for the first time on appeal, the specification is viewed with “maximum liberality.” Ballan, 71 M.J. at 33. In all cases, where a specification is challenged for the first time on appeal, a specification “is viewed with greater tolerance than one which was attacked before findings and sentence.” United States v. Watkins, 21 M.J. 208, 209 (C.M.A.1986). The level of scrutiny that should be applied to the specification at issue falls somewhere in the middle of the spectrum because the appellant challenged the validity of the specification for the first time on appeal, but contested the charge and specification at trial.
In deciding what level of scrutiny to apply to the specification in this case, it is appropriate to consider the record as a whole to determine whether the pleading of the specification interfered with the appellant’s defense. It is notable that the defense did not seek relief by either moving for a bill of particulars or moving to dismiss for failure to state an offense. Likewise, the defense did not move to dismiss the specification under R.C.M. 917. Additionally, the defense did not object to the trial judge’s instructions to the members on the terminal elements for both a clause 1 and clause 2 offense. Furthermore, the specification alleged the facts as to the time, place, victim, and the words spoken with such specificity as to guard against the possibility of a subsequent prose-eution for the same offense. The appellant and his military defense counsel had every opportunity to challenge the specification but chose not to.
Under these circumstances I see no interference with the appellant’s rights to due process, notice, or protection against double jeopardy. Accordingly, I would eschew the standard espoused in Fosler and adopt the standard stated in Watkins of liberally construing the specification in favor of validity. Watkins, 21 M.J. at 209. Because the appellant did not plead guilty, I would not go so far as to adopt the maximum liberality standard stated in Ballan.
As to the facts stated within the specification, the majority correctly identifies the statutory elements and the facts set forth in the MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), which define the offense. I note that the language of the specification tracks the model specification provided in the MCM and does not expressly allege that the conduct was prejudicial to good order and discipline or was of a nature to bring discredit upon the armed forces. However, the facts alleged in the specification not only state the contemplated act, i.e. a wrongful communication of a threat to another person, they also state additional facts which place the communication of a threat into context. The specification states facts that the appellant, an enlisted Marine, profanely communicated the threat to a commissioned naval officer, whom the appellant recognized as a commissioned officer, i.e. “You better back the [fxxx] up Lieutenant....” Furthermore, the communication of this threat occurred in a military facility, the Naval Medical Center, San Diego.
Liberally construing the specification in favor of validity, I find the additional facts alleged in this specification bespeak of such a breakdown from traditional military mores, and which occurred in a military facility, that the terminal element of prejudice to good order and discipline is palpable. Likewise, the specification alleges acts that mark such *542an egregious departure from the very basic norms expected of every service member, the conclusion that the conduct alleged was of a nature that brings discredit upon the armed forces is inescapable. Accordingly, I find the specification does allege each element of the offense by necessary implication,