(dissenting):
The accused entered a plea of guilty *455to two specifications which alleged that he had signed an official record knowing the same to be false, in violation of Article 107, Uniform Code of Military Justice, 10 USC § 907. Neither specification alleged the essential element that the accused acted with intent to deceive. In United States v Fout, 3 USCMA 565, 13 CMR 121, we held that every essential element of an offense sought to be charged must be alleged either directly or by clear implication. Accord, United States v Karl, 3 USCMA 427, 12 CMR 183. It is clear, therefore, the specifications in question are insufficient to support findings of guilt under Article 107 of the Code, supra.
The specifications also fail to allege offenses cognizable under Article 134 of the Code, supra, 10 USC § 934. In United States v Norris, 2 USCMA 236, 8 CMR 36, we made it clear that we would not grant to the services unlimited authority to eliminate vital elements from offenses expressly defined by Congress and permit the remaining elements to be punished under the general Article. In the past we have consistently adhered to this sound principle and I regret the majority’s departure from it in the absence of some compelling reason. Cf. United States v Johnson, 3 USCMA 174, 11 CMR 174; United States v Rios, 4 USCMA 203, 15 CMR 203.
I also cannot accept the Government’s contention that the specifications were sufficient to allege violations of 18 USC § 1001, as an offense not capital under Article 134 of the Code, supra. Section 1001 proscribes the making of any “false, fictitious or fraudulent statement” in a matter within the jurisdiction of any department or agency of the United States. Materiality of the representation must be established. Freidus v United States, 223 F2d 598 (CA DC Cir) (1955). It is not clear, however, whether materiality must also be alleged in the indictment. United States v Larocca, 245 F2d 196 (CA DC Cir) (1957); Weinstock v United States, 231 F2d 699 (CA DC Cir) (1956). If such an allegation is required — a question which I need not decide at this time — the specifications here would be deficient because they do not allege materiality. In any case the question of materiality is a substantial one which was not presented by the original designation of the statute allegedly violated.
Furthermore, I consider it a rather anomalous situation — to say the least— to substitute a five-year offense (18 USC § 1001) for an offense punishable by only one year (Article 107 of the Code, supra). To me, this case represents the “defective, careless, and misleading pleading” which this Court refused to sanction in United States v Rios, supra. I see no reason why we should sanction it now. I would dismiss Charge II and its specifications and permit the board to reassess an appropriate sentence on the basis of the remaining approved findings.