(concurring in the result) :
I believe that Charge I is not triable by court-martial.
Article 80, Uniform Code of Military Justice, 10 USC § 880, permits the trial, conviction, and punishment by court-martial of any person sub*85ject to the Code who “attempts to commit any offense punishable by this” Code. If an “attempt” is alleged under this article it must relate to an offense chargeable under the Code.
Aircraft piracy, Title 49, section 1472 (i), United States Code, is a capital offense effective beyond the continental limits and triable in a civilian court. Military charges for offenses made crimes by Federal statute are normally alleged as violations of Article 134,1 Code, supra, 10 USC § 934 — if the crimes are not punishable by death. Of the latter Congress has erected “an absolute barrier against military courts trying peacetime offenses which permitted the imposition of the death penalty in civilian courts.” United States v French, 10 USCMA 171, 178-179, 27 CMR 245.
Charge I did not refer specifically to section 1472 (i) of Title 49, United States Code, but “[i]t is well-settled that if a specification sets out the essential elements of an offense it need not also specify the name or the number of the statute defining the offense, unless the designation is necessary to a proper understanding of the charge.” United States v Hogsett, 8 USCMA 681, 686, 25 CMR 185.
A capital offense cannot be converted into a noncapital one by charging it as discrediting conduct under the general article because this would render the “crimes and offenses not capital” portion of the article meaningless and impermissi-bly “widen the sweep of military jurisprudence beyond the intent of Congress and the limitations of the Code.” United States v French, supra, at page 178. The Government may not do indirectly what it is precluded from doing directly.
Because the substantive offense is not an offense punishable by the Code, neither is an attempt to commit it punishable under Article 80, Code, supra. There is, in essence, a jurisdictional defect that requires dismissal of Charge I, its specification, and reassessment of the sentence.
“Art. 134. General article.
“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or sum mary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.” Uniform Code of Military Justice.