(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I concur in the majority opinion generally, but I dissent from that part which holds that the sentence is legal.
All of us agree that the law officer improperly considered the offense of transporting the girl in the misappropriated Government vehicle as bribery, and, therefore, his instruction on the applicable punishment was erroneous. However, we disagree on the proper limit of punishment for that offense. The majority find a “marked similarity” between the offense charged and graft. Since the maximum punishment for graft is the same as that for bribery, they conclude that the accused was not harmed by the erroneous instruction. In my opinion, the offense cannot reasonably be equated to graft, and, consequently, I regard the error as prejudicial and the sentence as illegal.
The gravamen of graft is the extraction of private gain from another while holding a peculiar position of superiority, influence, or trust (State v. Sheridan, 14 Idaho 222, 93 P 656 (1908)), or a dishonest transaction in relation to public or official acts (Black’s Law Dictionary, page 827). The Government sought to support the analogy of the instant offense to graft on the ground that the accused was in a superior position to the person from whom he exacted payment for the transportation of the female. In its brief, it said (pages 6-7) :
. . Furthermore, if the facts of the instant case are applied to the elements of the offense of graft, the similarity of appellant’s act to graft becomes painfully clear. The gravamen of that offense is the unlawful advantage that appellant exacted from Williams by reason of his position of superiority over Williams (Razete v. United States, supra). Stated in the light of the facts, appellant was in possession of a government vehicle. Williams and his associates had a Korean prostitute and a large quantity of army clothing which they desired transported to Wonju, Korea. Of necessity the female had to be concealed as well as transported, and this could only be done by using a vehicle. Appellant in the superior position of having such a mode of transportation compelled Williams to pay him (appellant) $30.00 to effectuate Williams’ criminal design. Thus, since the United States is interested in the use of its vehicles, appellant’s act in accepting $30.00 from Williams is indeed closely related to the offense of graft.”
The Government’s contention was correctly rejected by the majority. Plainly, the accused did not occupy a peculiar position of superiority, influence, or trust with respect to the person who paid for the transportation. But, by some strange alchemy, the majority has created for the accused a sort of de facto status of officiality so as to hold him accountable on the basis of a dishonest transaction in relation to public or official acts. Having conceded a lack of official capacity in the initial use of the vehicle, I cannot understand how the later transportation for pay was in relation to an official act. There was patently no semblance of official action in either the misappropriation of the vehicle or in the subsequent use for hire.
No doubt the accused’s conduct amounted to a serious offense. However, that offense was misappropriation of the vehicle. The further improper use in transporting the girl for pay was no more than a simple disorder. Under the circumstances of this case, it is unrealistic and unreasonable to equate that act to graft or something closely related to graft.
Inasmuch as the maximum confinement that may be adjudged for a dis*351order is four months, (Manual for Courts-Martial, United States, 1951, paragraph 127c, page 225), the approved findings of guilty cannot support ■ the present sentence. Accordingly, I would reverse the decision of the board of review and return the record of trial to The Judge Advocate General for proceedings not inconsistent with this opinion.