(concurring in the result) :
I concur in the result.
I do not, however, agree with the concepts advanced by the author Judge for the reason that they have been rejected by us in United States v Frayer, 11 USCMA 600, 29 CMR 416, and United States v Holiday, 4 USCMA 454,16 CMR 28. See also United States v Fuller, 9 USCMA 143, 25 CMR 405, where the Chief Judge, writing for a unanimous Court with regard to the doctrine of pre-emption, rejected its application in that case, making the following illuminating observation:
“. . . Moreover, the offense of fraudulent burning is not made up of elements remaining from those of arson after one or more of the essentials of the latter are eliminated. Cf. United States v Norris, supra.” [9 USCMA at page 145.]
Considerations could be set forth at length to demonstrate the absence of any Congressional intent to blanket the entire field of assaults with Article 128 of the Code, 10 USC § 928. Suffice it to note here, however, that we have on many occasions affirmed convictions under Article 134, Uniform Code of Military Justice, 10 USC § 934, for various types of assaults. And in United States v Gittens, 8 USCMA 673, 25 CMR 177, and United States v Lawrence, 8 USCMA 732, 25 CMR 236, even though reversing on other grounds, this Court implicitly recognized that assaults dependent on the status of the victim may properly lie under the general article.
But in any event, no law on the question is fixed by the Court’s holding in the case at bar, so a full discussion of that issue is unnecessary here and a firm answer need not be given. However, even if we were to assume that the instant offense is covered by Article *30128, as the author Judge contends, then the maximum punishment for the crime charged and proved is merely misplaced in the Table of Maximum Punishments. The President is empowered by Article 56, Uniform Code of Military Justice, 10 USC § 856, to set maximum limits on sentences for offenses, and he may vary the punishment conditioned upon aggravating or extenuating circumstances. He listed the specific offense herein alleged and proved, and prescribed a maximum including two years’ confinement. Paragraph 127c, Manual for Courts-Martial, United States, 1951, at page 225. That was the period used by the law officer, and accordingly the instruction given by him was proper. To hold otherwise is to ignore the limit of punishment for a described offense merely because of its location in the Table of Maximum Punishments, a premise totally inconsistent with our decisions in United States v Deller, 3 USCMA 409, 12 CMR 165, and allied cases.
For the above stated reasons, I join in affirming the decision of the board of review.