(concurring in part and dissenting in part):
I agree that this Court’s decision in United States v Alderman, 22 USCMA 298, 46 CMR 298 (May 25, 1973), is dispositive of the appellant’s assignment of error regarding the introduction of a previous summary court-martial conviction.2 I disagree, however, that the Court of Military Review erred in setting aside the findings of guilty of specification 3 of the Charge.
In United States v Fout, 3 USCMA 565, 567-568, 13 CMR 121, 123-124 (1953),3 this Court unanimously declared:
[A] failure to attack a specification "because it does not state an offense cannot be waived.” United States v Karl, 3 USCMA 427, 430, 12 CMR 183, 186 [1953]. See also United States v Bunch, 3 USCMA 186, 189, 11 CMR 186, 189 [1953]. Even a plea of guilty does not preclude a later attack on a specification upon that ground. Manual for Courts-Martial, United States, 1951, paragraph 68Á See United Brotherhood v United States, 330 US 395, 412, 91 L ed 973, 987, 67 S Ct 775 (1947); Michener v United States, 170 F2d 973, 975 (CA 8th Cir) (1948); Hocking Valley Ry. Co. v United States, 210 Fed 735, 738 (CA 6th Cir) (1914). Moreover, the presence of evidence in the record cannot remedy a defective charge. United States v Soukup, 2 USCMA 141, 7 CMR 17 [1953].
Every essential element of the offense sought to be charged must be alleged directly or by clear implication in the specification. See United States v Sell ... [3 USCMA 202, 11 CMR 202 (1953)].
See also United States v Caudill, 16 USCMA 197, 36 CMR 353 (1966); United States v Rios, 4 USCMA 203, 15 CMR 203 (1954).
And, in United States v Petree, 8 USCMA 9, 12, 23 CMR 233, 236 (1957):
Entry of a plea of guilty admits all the facts pleaded but does not admit that these facts constitute a crime. United States v Puncsak, 146 F Supp 523 (Alaska) (1956).
Ordinarily the essential elements of an offense are set forth in a particular statutory enactment. United States v Caudill, supra. In this instance, however, the Government undertook to establish an offense under Article 134, UCMJ. Cf. Levy v Parker, — F2d — (3d Cir., April 18, 1973); Avrech v Secretary of the Navy, — F2d — (DC Cir., March 20, 1973). The elements of this offense are delineated in a sample specification, Appendix 6c, No. 146, Manual for Courts-Martial, United States, 1969 (Revised edition), the only oficial source for such data in this instance, Article 36, UCMJ; United States v Smith, 13 USCMA 105, 32 CMR 105 (1962). The second element requires that the introduction by the accused was "for the purpose of (use) (transfer) (sale) ( ).” Indeed, the military judge so informed the appellant and counsel at the trial.4 In such circumstances, it is clear that the purpose for which the drug was introduced into the military base is a necessary ingredient of this alleged crime. Since specification 35 *357in the case before us fails to pontain any verbiage which alleges "directly or by clear implication” a purpose for the introduction of the drug into the military base, it is fatally defective. United States v Fout, supra; United States v Rios, supra; and United States v Caudill, supra.
In the early case of United States v Marker, 1 USCMA 393, 3 CMR 127 (1952), this Court considered an allegation that a specification failed to contain an essential element of an offense. At that time we unanimously adopted the standard laid down by the Supreme Court in Hagner v United States, 285 US 427, 431 (1932):
The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged.
I would answer the certified question in the affirmative.
Although appellant was not then represented by counsel, his sentence did not include confinement.
In Fout, we answered in the affirmative a certificate of the Acting Judge Advocate General of the Army which asked whether the board of review was correct in holding that a finding could not be sustained upon a plea of guilty where the specification, alleging a violation of Article 86, UCMj, did not reflect that the absence was without proper authority.
Department of the Army Pamphlet No. 27-9, Military Judges’ Guide, at 4-167 (1969).
"In that Private Herbert L. ROSS, U. S. Marine Corps, Headquarters Company, Headquarters Battalion, Marine Corps Base, Quantico, Virginia did, at Marine Corps Base, Quantico, Virginia, on or about 16 March 1972, wrongfully introduce 0.1894 grams, more or less, of a habit forming narcotic drug, to wit: Heroin, into a military base.”