(concurring in the result):
I concur in the result.
In United States v Hardy, 11 USCMA 487, 29 CMR 303, I expressed the view that Uniform Code of Military Justice, Article 97, 10 USC § 897, was “intended ... to provide for the punishment of those officers and other individuals who use their Code-conferred powers of arrest, apprehension, and confinement arbitrarily to harass personnel subject to their control.” United States v Hardy, supra, at page 494. Thus, I am able to join with Judge Latimer in his ultimate conclusion that the mentioned Code section in no way pre-empts the use of Code, supra, Article 134, 10 USC § 934, and the Assimilative Crimes Act, 18 USC § 13, to punish the crime of kidnaping in violation of a state statute thereby adopted as a part of the Federal law. For the same reason, I agree that the punishment which must govern accused’s penalty is not that prescribed in the Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, United States, 1951, for the abuse by military law enforcement personnel of their authority, but that specifically set forth in the Colorado enactment and assimilated by 18 USC § 13, supra.
I desire, however, to dissociate myself from that portion of the principal opinion which generally discusses the doctrine of pre-emption. My views on that subject were set forth at length in United States v McCormick, 12 USCMA 26, 30 CMR 26, and I am of the opinion that the Assimilative Crimes Act, supra, may not be used under the noncapital provisions of Code, supra, Article 134, to enlarge the calendar of military offenses when similar misconduct is punished under specific punitive Articles. That same conclusion was reached by the Supreme Court in Williams v United States, 327 US 711, 90 L ed 962, 66 S Ct 778 (1946). There, the Government sought to invoke, under the terms of 18 USC § 13, supra, the provisions of an Arizona statute which defined rape to include sexual connection with any female under the age of eighteen years. A specific Federal enactment made such conduct with an Indian girl criminal if she were less than sixteen years old. Other Federal statutes expressly punished the crimes of rape, assault with intent to commit rape, carnal knowledge, adultery, and fornication. The prosecutrix was an Indian. In reversing the defendant’s conviction, Mr. Justice Burton stated, at page 717:
“We hold that the Assimilative Crimes Act does not make the Arizona statute applicable in the present case because (1) the precise acts upon which the conviction depends have been made penal by the laws of Congress defining adultery and (2) the offense known to Arizona as that of ‘statutory rape’ has been defined and prohibited by the Federal Criminal Code, and is not to be redefined and enlarged by application to it of the Assimilative Crimes Act. The fact that the definition of this offense as enacted by Congress results in a narrower scope for the offense than that given to it by the State, does not mean that the Congressional definition must give way to the State definition. This is especially clear in the present case because the specified acts which would come within the additional scope given to the offense by the State through its postponement of the age of consent of the victim from 16 to 18 years of age, are completely covered by the federal crimes of adultery or fornication. The interesting legislative history of the Assimilative Crimes Act discloses nothing to indicate that, after Congress has once defined a penal offense, it has authorized such definition to be enlarged by the application to it of a state’s definition of it. It has not even been suggested that a conflicting state definition could give a narrower scope to the offense than that given to it by Congress. We believe that, similarly, a conflicting state definition does not enlarge the scope of the offense defined by Congress. The Assimilative Crimes Act has a natural place to fill through its supplementation of the Federal Criminal Code, without giving it the added *202effect of modifying or repealing existing provisions of the Federal Code.” [Emphasis supplied.]
In like manner, I do not believe that the Assimilative Crimes Act may be given “the added effect of modifying or repealing existing provisions” of the Uniform Code of Military Justice. However, as noted before, while Judge Latimer and I follow different paths, we ultimately arrive at the same goal. Thus, I am able to agree with him that the Assimilative Crimes Act was properly invoked here to punish the crime of kidnaping in violation of the pertinent Colorado statute. Accordingly, I join with him in affirming the decision of the board of review.