(dissenting):
Trial defense counsel in this case requested the court to dismiss this specification as defective for failing to state an offense. See para. 685(3), Manual for Courts-Martial, United States, 1969 (Revised edition). After being informed that the Government intended to show the alleged communication 1 was made by telephone, the military judge denied this motion. The military judge ruled “that there is sufficient information contained in the specification to inform the accused of what he is being charged with and to prohibit his trial on a subsequent complaint alleging the same violation.”
The defense counsel later requested that the military judge reconsider his decision on the motion. After further argument on the necessity of alleging the elements of the offense charged, the military judge again denied the motion to dismiss. He stated:
All right, the specification alleges a specific title of the United States Code which has been violated. Now, that in my mind is sufficient to incorporate the elements of the offense of that particular statute into the specification, and because of that I am denying your motion to dismiss for a failure to allege an offense. Anything further?
D.C.: No, Your Honor.
Trial defense counsel at this time did not request the trial judge to amend this specification. Para. 69b, Manual, supra.
Defense counsel prior to trial had further recourse under paragraph 69b to attack this specification despite the fact that the military judge ruled that it stated an offense cognizable by court-martial. His failure to request the specification be amended to correct any perceived inartfulness or indefiniteness obviates any requirement for this Court to apply the strict standard of United States v. Sell, 3 U.S.C.M.A. 202, 11 C.M.R. 202 (1953). In my opinion, it is enough under such circumstances that the necessary facts appear in any form or by fair construction within the terms of the specification. See United States v. Whyte, 1 M.J. 163 (C.M.A.1975).
In this light, a formal defect in the alleged factual allegations may be overcome by necessary implications within the specifi*296cation. See United States v. Simpson, 2 U.S.C.M.A. 493, 9 C.M.R. 123 (1953). I conclude that the particular factual allegations and the express reference to the underlying federal criminal statute fairly imply that appellant’s alleged conveyance of false information was by means of an instrument of commerce as prohibited by 18 U.S.C. § 844(e). See United States v. Bunch, 3 U.S.C.M.A. 186, 187-88, 11 C.M.R. 186, 187-88 (1953); United States v. Smith, 49 C.M.R. 325, 328 (N.C.M.R.1974); United States v. Johnson, 48 C.M.R. 282, 285 (A.C.M.R.1974), pet. denied, 23 U.S.C.M.A. 605, 48 C.M.R. 1000 (1974). Although I do not condone the government’s failure to allege the particular instrument of commerce employed, such a failure does not defeat the sufficiency of the specification. United States v. Suggs, 20 U.S.C.M.A. 196, 43 C.M.R. 36 (1970). Moreover, in view of trial counsel’s response to the military judges’s inquiry, it is clear that appellant was sufficiently apprised of the charge he must face. Finally, I perceive no danger to appellant in terms of double jeopardy. Id. at 199, 43 C.M.R. 39.
Under such circumstances, our decisions in United States v. Fleig, 16 U.S.C.M.A. 444, 37 C.M.R. 64 (1966), and United States v. Sell, supra, do not dictate setting aside this finding of guilty.
. The final portion of the specification not shown in the majority opinion is the following:
Jurisdiction attaches to the military because the communication was intended to be received in an area under exclusive military and federal control.