(concurring in part and dissenting in part) :
I concur in part and dissent in part.
While I join the Chief Judge in holding that the questioned specification alleges the offense of communicating a threat, which issue I shall discuss more fully hereinafter, I must disagree with the majority’s conclusion that jurisdiction was wanting to try accused for such crimes as were committed during his prior enlistment.
In vew of the divergent approaches that have been taken by the respective Judges of this Court on jurisdictional issues, I see little value in discussing the question at any length. I do, however, suggest that the holding here seems difficult to square with the conclusion in United States v Martin, 10 USCMA 636, 28 CMR 202, particularly with the following statement by the author of the principal opinion:
“It is contended, however, that since the offense in issue is triable in a Federal district court as a violation of either 18 USC § 287 or § 1001, Article 3 (a) prohibits the exercise of court-martial jurisdiction. The argument disregards the fundamental purpose of the Article. The Article was intended to enlarge jurisdiction, not to restrict it.” [10 USCMA at page 639.]
To the extent that the rationale utilized in the case at bar may represent a retreat from that position — with which I expressed my disagreement in Martin — my associates appear more nearly to employ the concepts I would follow in applying Article 3(a), Uniform Code of Military Justice, 10 USC § 803. The interested reader will find my own views on jurisdiction under that Article set forth in United States v Gallagher, 7 USCMA 506, 22 CMR 296, and in my separate opinions in United States v Martin, supra, and United States v Wheeler, 10 USCMA 646, 28 CMR 212. However, I believe it unnecessary to reach that question in this instance, for I conclude jurisdiction may be grounded on another basis. A brief recitation of the facts will be helpful in understanding my position.
On June 12, 1958, while he was serving in Germany, the accused’s term of enlistment expired and he was honorably discharged. It was his intention and he in fact did re-enlist the next day to fill his own vacancy, “just as if it was a continuance.” During this period, he and his family continued to remain members of the military community, occupied Government quarters, retained exchange and other kindred privileges afforded to servicemen by the armed forces, and there was no application to remain in Germany as a civilian nor any move to merge with the local community. Accused was brought to trial in April of 1959, and there, on the basis of the above facts, individual civilian defense counsel moved to dismiss certain of the offenses charged, contending that jurisdiction was wanting to try accused for such crimes as were committed during his prior enlistment.
Obviously it is necessary that the accused be subject to military law both at the time the offense is committed and at the time of trial, and in my view it is also essential that he be subject to military law at all times between the two events. Here the accused was in Germany when the offenses were perpetrated, when he was tried and during the intervening period, and consequently there was no hiatus in military jurisdiction. My views on that factual situation are set forth in the following *606■quotation from United States v Solinsky, 2 USCMA 153, 7 CMR 29, and the recent decisions of the Supreme 'Court have not announced contrary-ideas :
“There is another fundamental difference between the two cases. In ■this instance the accused was discharged and re-enlisted while he was con duty in Germany. Hirshberg’s -status changed while he was in the United States. In all of the Manual provisions, it is expressly provided that if a change in status does not remove the person from a category of persons subject to military law, then jurisdiction is not cut off. Subsection (d) of Article of War 2, ¡supra, provides as follows:
'All retainers to the camp and •all persons accompanying or serving with the Armies of the United States without the territorial jurisdiction of the United •States, and in time of war all such retainers and persons accompanying or serving with the Armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles.’
“If we were to make what appears to us to be an unreasonable assumption, that is, that accused’s status changed, we would be faced with this factual situation. For an infinitesimal period of time the accused became a civilian without the territorial jurisdiction of the United States. During this period he was housed, maintained, paid, and otherwise serviced by the United States Army. He was transported overseas and he was returned to the United States by the Army. Between these two events he was always a soldier. Under these circumstances he would either be accompanying or serving with the Armies of the United States from the moment he left these shores until he returned. If, for a moment, he stepped from his uniform into civilian clothes and then back again, he never stepped into a category which was not subject to military law. Under the principles announced in all the authorities, and under the Articles of War, he was always subject to courts-martial jurisdiction. A momentary break in service does not necessarily break court-martial jurisdiction. It did in the Hirsh-berg case but as we view the particular circumstances of this case, we find it did not do so here.”
Accordingly, I am of the opinion that the law officer ruled correctly when he denied the defense motion, and I must disagree with my associates insofar as they hold jurisdiction wanting in the case at bar.
The remaining issue concerns the sufficiency of one specification to allege the offense of communicating a threat. I agree that that crime is stated, but believe it may be helpful to discuss the problem somewhat more fully. The issue raises the interesting question of whether that crime must be based on an avowed purpose to inflict physical injury. The specification in question alleges and the facts establish that the accused threatened falsely to accuse a named victim of unspecified crimes and to obtain false statements against him unless he refrained from testifying unfavorably about the accused in an impending investigation.
It is argued by the accused that threats within the purview of Article 134, Uniform Code of Military Justice, 10 USC § 934, should be limited to offers to do physical violence and that inferentially our prior cases announce that limitation. The last portion of the argument may be disposed of with dispatch because we have not expressed any opinion on other types of injuries for the reason that such an issue has never been before us. United States v Jenkins, 9 USCMA 381, 26 CMR 161; United States v Kelly, 9 USCMA 26, 25 CMR 288; United States v Hazard, 8 USCMA 530, 25 CMR 34; United States v Humphrys, 7 USCMA 306, 22 CMR 96; United States v Davis, 6 USCMA 34, 19 CMR 160; United States v Rutherford, 4 USCMA 461, 16 CMR 35; United States v Holiday, 4 USCMA 454, 16 CMR 28; and United States v Sturmer, 1 USCMA 17, 1 CMR 17, *607are cases which involved physical injury, and there is no language which fairly infers that threats to reputation or property are excluded from our definition of the word “threat.”
In those cases, we defined “threat” as follows: “A threat is an avowed present determination or intent to injure presently or in the future.” The critical word, insofar as the present issue is concerned, is “injure.” In Webster’s New International Dictionary, 2d ed, the following definition may be found:
“To do harm to; to hurt; damage; impair; to hurt or wound, as the person; to impair the soundness of, as health; to damage or lessen the value of, as goods or estate; to slander, tarnish, or impair, as reputation or character; to give pain to, as the sensibilities or the feelings.”
Surely within that delimitation is damage to reputation or character, and for the reasons set forth in the principal opinion it is manifest that the crime can be committed by threats to injure or destroy the important rights to have and enjoy a good name and an untarnished character, for Article 134 of the Code, supra, proscribes those offenses which are not specifically defined in the punitive Articles but which have a direct impact upon the good order and discipline of the services.
That leaves for consideration the contention that the specification alleges extortion under Article 127 of the Code, 10 USC § 927, and therefore the offense must be punished thereunder or not at all. A similar argument is made repeatedly on appeal as it offers an escape route for an accused. Although, from a punishment standpoint, it makes no difference to him since the maximum permissible punishment is the same for both offenses, he can, by seeking to shift the charge, assert that the court-martial was not given an opportunity to consider the elements of the offense of extortion. There can be no doubt, however, that we must reject the argument that Congress pre-empted the field of threats not involving injury to the person when it enacted Article 127. As the Chief Judge points out, that contention is but a refinement of the one urged upon us in United States v Holiday, supra, but specifically rejected. Our rationale there disposes of this argument but, because like assertions are so often brought before us, I deem it appropriate to develop the issue at greater length in an endeavor to resolve mistaken notions in this area.
There seems to be some misapprehension about the power of Congress to make one act a crime under two or more punitive Articles. There is no such proscription, for the bar that has been erected is that an accused shall not be twice tried or punished for the same offense. But that is not to say that the Government cannot elect to prosecute once under any statute which has been violated. By way of illustration, when a member of the military misses a movement, he can be charged with violating either Article 86 or Article 87. If he runs away in the presence of the enemy, he may be tried for desertion under Article 85 or misbehavior before the enemy pursuant to Article 99. Examples could be multiplied, but from the foregoing it ought to be evident that, unless there are clear indications that Congress, by enacting one statute, intended not to permit prosecution under any other law, then the Government may choose which punitive Article will be used to support the specification and charge.
In the case at bar, we are faced with a situation where we must consider the issue when we have one specific punitive Article which defines extortion and a general Article which leaves the final definition of the offense to this Court. However, the right to bring an action under either Article is not diminished by that fact. For example, I am certain no one would contend that because Congress proscribed drunken driving under Article 111, ordinary drunkenness does not constitute a delict in contravention of Article 134. By the same token, in the event an accused threatens physical injury to an officer in the execution of his duties, there can be no doubt that he may properly *608be charged with either a violation of Article 90 or communicating a threat under the general Article. But more important, and with regard to the specific problem before us in this instance, there is no clear-cut indication that Congress intended to narrow the crime of communicating a threat to physical damage to the person merely because it passed an Article making extortion an offense. To the contrary, it is crystal clear that the latter crime was intended to protect an entirely different norm. An essential ingredient of extortion is that it must be communicated with the intent to obtain anything of value, or any acquittance, advantage or immunity. The element is unimportant in the crime of communicating a threat, for it can be committed if the accused is actuated solely by hatred, anger or vengeance. Extortion can be perpetrated by threats of physical violence or injury to character or reputation, and so if Congress pre-empted the field of threats when it enacted Article 127, it left a field of crimes un-punishable — a field which is of critical importance to the maintenance of discipline and good order in the armed forces.
United States v Norris, 2 USCMA 236, 8 CMR 36, and United States v Johnson, 3 USCMA 174, 11 CMR 174, are again cited — as they were in Holiday, supra — as authority for the proposition that bringing this action under Article 134 was improper. Perhaps if we were confronted with the same conditions with respect to the crime of communicating a threat as existed where we found Congress had blanketed the field with specific punitive Articles, the principle announced in Norris might be apposite. Singularly missing, however, in the case at bar is any indication that Congress intended a preemption. Moreover, the following language from Un’ted States v Norris, supra, bears mentioning:
“Whatever may have been the state of the law prior to the Uniform Code, we are convinced that the general Article of the Code — Article 134, supra- — embraces no criminal conversion offense lesser than wrongful appropriation as defined by Article 121, supra. That Article includes larceny and wrongful appropriation — the distinction between the two lying in the required element, for the former, of an intent to deprive permanently and, for the latter, of an intent to deprive only temporarily. ‘Wrongful taking’ is not mentioned as an offense anywhere in the Code or Manual. No sample specification governing such an offense is listed; it is not mentioned in the Table of Maximum Punishments; and it is not listed in the ‘Table of Commonly Included Offenses’ as lesser included under larceny.”
That situation may appropriately be compared with the treatment given to communicating a threat. While it is not specifically defined in the Code, it is not out of the ordinary for civilian jurisdictions to proscribe that act as an offense, and military law has recognized the crime. There is a sample specification setting forth the allegations necessary to state the offense, and it is listed in the Table of Maximum Punishments. Manual for Courts-Martial, United States, 1951, appendix 6c, at page 494, and paragraph 127c, at page 227. While these are merely straws in the wind, they are factors which bear upon the question of preemption and suggest a new and unintended offense is not being created by our construction.
For all the above stated reasons, I agree with the Chief Judge that we must reject the argument that the questioned specification fails to state the offense of communicating a threat.
Accordingly, I would affirm the decision of the board of review.