(concurring in the result) :
I concur in the result.
I do not concur outright because I have some reservations about the correctness of measuring these offenses by the elemental test. The definition of larceny, as presently set out in the Code, includes several offenses which were previously separate and distinct from each other. Therefore, the elements may vary somewhat in that larceny can involve a wrongful taking (the usual version of the crime); a wrongful obtaining by false representations (larceny by fraud or trick) ; or a wrongful withholding (embezzlement). For that reason, the charge of larceny might conceivably embrace a charge of graft, and proof of the former might also establish the latter.
The reason I join my associates in affirming the board of review is that historically the offense of larceny has been distinguished from both graft and cheating, and in military law they have been regarded as separate crimes. There is nothing in the Code which remotely suggests an intent to merge the classes, and Judge Ferguson, speaking for the Court, mentions certain indicia which point away from the notion that any such purpose was contemplated by Congress or the President. Both cheating and graft are offenses which have a direct impact on discipline in the Services and are a discredit to them. They should be the subject of punishment, but they need not be considered and characterized as synonymous with larceny. Therefore, I find no reason to hold that Article 121 alone covers this field.
In the case at bar, it is distinctly arguable that the facts would have established larceny had the Government elected to allege that offense. However, the prosecution need not allege a transgression in its most serious aspect, and an accused is in no position to complain if the pleading benefits him by charging him with the lesser of several offenses. It appears to me that that principle underlies this prosecution.