(dissenting):
I dissent.
In United States v Armes, 19 USCMA 15, 41 CMR 15, a majority of this Court held that the theft of a civilian-owned automobile from a location in the civilian community was not “service connected” within the meaning of O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), even though the accused had, the day of the theft, escaped from lawful military confinement. The facts of this case are practically identical to Armes with one exception, an exception which my brothers deem is sufficient to clothe a court-martial with jurisdiction over the offense — the accused was wearing his military fatigue uniform at the time he obtained permission to test drive the automobile, thereby facilitating his deception of the salesman. Such a circumstance, they believe, is an abuse of military status, likely to influence the extent of confidence by the public in members of the armed forces and, as such, substantial enough to provide the requisite service-connection for the armed forces to exercise jurisdiction over this offense. I disagree.
The accused in this case was charged under Article 121, Uniform Code of Military Justice, 10 USC § 921 (Additional Charge II), with the wrongful appropriation of an automobile. It is apparent from the specification that the offense was committed in the civilian community and against civilians. It was cognizable in the local courts. The manner in which the offense was committed is not set forth in the specification, nor need it be, for it is not an element of the offense. As this Court said in United States v Buck, 3 USCMA 341, 343, 12 CMR 97:
“By enacting Article 121(a), supra, Congress eliminated the oftimes subtle and confusing distinctions previously drawn between common law larceny, embezzlement, and false pretenses. United States v Aldridge, 2 USCMA 330, 8 CMR 130, decided March 24, 1953; United States v Norris, 2 USCMA 236, 8 CMR 36, decided February 27, 1953.”
The fact that the accused was in uniform or made representations as to his military status is simply irrelevant insofar as the wrongful appropriation of this car is concerned. How then can it be said that this is a factor to be considered in determining the question of jurisdiction.
This was not an offense involving the use or misuse of the uniform, nor was the offense charged, under Article 134, Code, supra, 10 USC § 934, as being “of a nature to bring discredit upon the armed forces” which might be the case where public confidence in the armed forces is an element of the offense. However, offenses chargeable under Article 134 are exclusive of those specified in other sections of the Code. A violation of Article 121 is not, at the same time, a violation of Article 134. United States v Norris, 2 USCMA 236, 8 CMR 36. Cf. United States v Johnson, 3 USCMA 174, 11 CMR 174; United States v Rowe, 13 USCMA 302, 32 CMR 302. The fact of discredit upon the armed forces plays no part in any criminal conduct, no matter how heinous, except where the offense is properly chargeable under Article 134. It cannot, therefore, be used as a vehicle to grant military jurisdiction over an offense which is not otherwise “service connected.” O’Callahan v Parker, supra.
*22I would reverse the accused’s conviction for wrongful appropriation of the automobile (Additional Charge II) and dismiss the charge and its specification. I would also reverse the sentence and order a rehearing on the remaining offenses which are service-connected.