(concurring in part and dissenting in part) :
I concur in part and dissent in part.
At the outset, I note my agreement with the Chief Judge’s conclusion that there was no jurisdiction to try accused for any of the offenses alleged against him except that portion of the adultery specification which stated that the crime *609occurred during his current enlistment and the charge of communication of a threat to Sergeant Caballero. In order that there may be no misunderstanding of my position, I point out that my conclusion concerning lack of jurisdiction is based upon the decision of the United States Supreme Court in Hirshberg v Cooke, 336 US 210, 93 L ed 621, 69 S Ct 530 (1949), and the adoption by Congress of the rule there enunciated, except as to serious offenses, in Uniform Code of Military Justice, Article 3, 10 USC § 803. I need not further discuss the matter, for my views were fully set forth in my separate opinion in United States v Martin, 10 USCMA 636, 28 CMR 202.
I am, however, unable to join with by brothers in their belief that specification 7 of Charge II properly alleges the offense of communicating a threat. The pertinent language of the specification is as follows:
“In that Sergeant (E-5) Frederick M. Frayer, U. S. Army, Company A, 503th Military Police Battalion did, at Bad Tolz, Germany, on or about 4 February 1959, wrongfully communicate to Sergeant Cecil W. Caballero a threat to injure the said Sergeant Caballero very badly by falsely accusing him of having committed unspecified offenses and by threatening to get persons to make false statements against him, in the event the said Sergeant Caballero should say anything unfavorable concerning the said Sergeant Frayer in an impending investigation, or words to those effects.”
It may be that the foregoing allegations set forth an offense similar to obstructing justice or tampering with a witness. See United States v Long, 2 USCMA 60, 6 CMR 60. The specification was submitted, however, to the court-martial upon the basis that it alleged communication of a threat to injure Sergeant Caballero’s reputation. The same theory is argued here, and reversal is required for instructional insufficiency unless it can be said that a threat to injure the reputation of another is, as a matter of law, an offense under Code, supra, Article 134, 10 USC § 934. I believe that it is not.
I have no argument with the conclusion that character assassination tends directly to affect good order and discipline in the armed forces. That is particularly true when the threatened damage has for its purpose interference in the conduct of an official military investigation. Nevertheless, I believe that my brothers fail to give sufficient weight to another provision of the Article in question.
Code, supra, Article 134, provides pertinently:
‘‘Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, . . . shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.” [Emphasis supplied.]
In United States v Norris, 2 USCMA 236, 8 CMR 36, we pointed out, at page 239:
“It is our view that, in accordance with the remarks of Professor Morgan, quoted earlier, Article 134 should generally be limited to military offenses and those crimes not specifically delineated by the punitive Articles. See Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 720.” [Emphasis supplied.]
Consonant with that declaration, we later held that it was error for the board of review to approve findings of guilty of a disorder under Code, supra, Article 134, where the accused had been tried and found guilty of missing movement, in violation of Code, supra, Article 87, 10 USC § 887. United States v Johnson, 3 USCMA 174, 11 CMR 174. Subsequently, we reached the same conclusion with respect to an attempt to charge an accused with absence without leave with intent to avoid basic training, in violation of Code, supra, Article 134, rather than Code, supra, Article 85, 10 USC § 885. United States v Deller, 3 USCMA 409, 12 CMR 165. *610The essence of thése decisions is that conduct violative of a specific Article of the Code may not, by superficial changes in allegations, be made also a violation of Code, supra, Article 134. The specific Article is pre-emptive.
In this case, I am convinced that the specification in question charges the offense of extortion, in violation of Code, supra, Article 127, 10 USC § 927. Indeed, the Manual for Courts-Martial, United States, 1951, in discussing the latter offense, states, at page 369:
“The threat sufficient to constitute extortion may be a threat to do any unlawful injury to the person or property of the individual threatened or of any member of his family or of any other person held dear to him; or a threat to accuse the individual threatened ... of any crime; . . .” [Emphasis supplied.]
In like manner, Article 127 defines extortion as the communication of “threats to another person with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity.” A reading of the specification makes it clear that Sergeant Frayer is alleged to have threatened Sergeant Caballero with the preference of false charges in order to 'prevent delivery of unfavorable testimony at an impending investigation. Had his threat been successful, it is clear beyond cavil that Frayer may have obtained “acquittance, advantage, or immunity.” It is, therefore, difficult for me to' reach any conclusion other than that the count sets forth a violation of Code, supra, Article 127, and that this specific statute is pre-emptive of Code, supra, Article 134. United States v Johnson, supra; United States v Deller, supra. In view of the theory utilized by the Government at the trial level and the resultant instructional deficiencies, I believe that reversal of this finding is required. United States v Dozier, 9 USCMA 443, 26 CMR 223; United States v Smart, 9 USCMA 451, 26 CMR 231.
The author of the principal opinion ignores the principle that a specific Article of the Code pre-empts the general Article by citing the Court’s contrary conclusion with respect to threats of physical violence in United States v Holiday, 4 USCMA 454, 16 CMR 28. The difficulty with this position is that it overlooks the substantial distinction between a simple threat of physical violence and threats made for the alleged and proven purpose of obtaining an advantage. United States v Holiday, supra, is thus clearly distinguishable, and I remind my brothers of Professor Morgan’s statement before the Congress that “we have made specific several offenses which were previously punishable under the general article.” (Emphasis supplied.) Hearings before Senate Armed Services Committee on S. 857 and H. R. 4080, 81st Congress, 1st Session, page 37. As extortion was formerly punished as a violation of the general Article, it certainly must fall within the class concerning which he spoke. Thus, I am sure that Congress intended a pre-emption where, as here, it is alleged that the threat was made for the purpose of obtaining an advantage to the accused. Under these circumstances, it behooves us to give the legislative purpose controlling effect. Accordingly, I cannot join with the majority in their belief that the Norris doctrine is inapplicable.
As I conclude that Code, supra, Article 127, is pre-emptive of Code, supra, Article 134, in the field of extortion, I would also order a rehearing with respect to specification 7 of Charge II.