concurring in part and dissenting in part:
For the reasons given in the majority opinion, I agree that the attempt to allege unlawful concealment of stolen property was fatally defective. I disagree with the conclusion of the majority that AAFES merchandise cannot be “military property” under Article 108 of the Uniform Code.
The term “military property” is not defined in the Uniform Code or in the Manual for Courts-Martial. Accordingly, to interpret this term as it applies to retail mer*579chandise of AAFES, it is necessary to trace the historical background of Article 108.
Prior to the Uniform Code of Military Justice, the Army was regulated by the Articles of War. At one time, the relevant section of the Sixtieth Article of War read as follows:
Any person in the military service of the United States . . . [w]ho steals, embezzles, knowingly and willfully misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, or other property of the United States, furnished or intended for the military service thereof. .. .
Winthrop’s, Military Law and Precedents, at 697-698, 2nd ed. (1920).
By the time the Manual for Courts-Martial, 1949, was published, the various portions of the Sixtieth Article of War had become Articles of War 83, 84 and 94. Article 94h prohibited the stealing, larceny, embezzlement, misappropriation, misapplication, sale and wrongful disposition of government property in language similar to the previous Article of War 60. The comment accompanying Article of War 94h explains:
to be the subject of an offense within this article, the property must be that “of the United States furnished or intended for the military service thereof.” This does not include post exchange, company or officer’s club funds or property or money appropriated for other than the military service. [Emphasis added].
Manual for Courts-Martial, U.S. Air Forces, 1949, at 252.*
When the Uniform Code of Military Justice was adopted, it used the term “military property” in Article 108. The former term “property of the United States furnished or intended for the military service” used in Article of War 94h was discarded. The language quoted above from the 1949 Manual including the reference to post exchange property was deleted. It has not surfaced again in more recent editions of the Manual. Instead, the current Manual, using language similar to that of the 1951 Manual, states:
Although there may be no direct evidence that the property in question was military property of the United States, circumstantial evidence that the property was of a type and kind issued for use in, or furnished and intended for, the military service of the United States, might, together with other proved circumstances, warrant the court in inferring that it was such military property of the United States.
MCM, 1969 (Rev.), paragraph 187.
The foregoing history indicates that the term “military property” is broad enough to cover property furnished or intended for the military service although it belongs to a nonappropriated fund rather than the armed forces, per se. The deletion of the restrictive qualification referring to “post exchange, company or officer’s club funds” contained in the 1949 Manual implies that the drafters did not agree with it and intended to repudiate it. In this case, none of the trial participants thought the issue of sufficient import to even litigate it. Under the circumstances, I find it inappropriate to declare that the AAFES merchandise described in this case could not be military property simply on the basis of ownership.
Moreover, the term “military property” should be interpreted in a broad sense when dealing with a violation of Article 108. United States v. Foust, 20 C.M.R. 907 (A.F.B.R.1955). Having been intended for military members, it was proper for the accused to admit, and for the trial judge to find, that it was furnished and intended for the military service and was therefore military property. Because AAFES merchandise is intended and furnished for the use of the members of the armed forces, its wrongful disposition has a direct adverse impact on the morale and welfare of the military services. I agree with a Navy Board of Review on this issue when it reasoned:
*580To hold any differently would, in our opinion, result in elevating form over substance. Unquestionably, the Navy Exchange is an instrumentality of the Government performing a function which is an integral part of the armed forces. The object of the exchange is to provide convenient and reliable sources where soldiers can obtain their ordinary needs at prices they can afford. It is superfluous to argue that the exchanges do not have a direct impact upon morale in the armed forces. [Citation omitted].
United States v. Mullins, 34 C.M.R. 694, 695 (N.B.R.1964). Accord: United States v. Harvey, 6 M.J. 545 (N.C.M.R.1978), pet. denied, 6 M.J. 193 (C.M.A.1979). Contra: United States v. Underwood, 41 C.M.R. 410 (A.C.M.R.1969). United States v. Geisler, 37 C.M.R. 530 (A.B.R.1966).
For the foregoing reasons, I dissent from the conclusion that AAFES merchandise, regularly offered for sale to members of the armed forces, is not “military property” within the meaning of Article 108. Hence, I would not hold accused’s pleas of guilty to be improvident as to that offense.
In the United States Court of Military Appeals Certificate for Review
TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF MILITARY APPEALS:
1. Pursuant to the Uniform Code of Military Justice, Article 67(b)(2), 10 U.S.C. § 867(b)(2), the record of trial and decision of the Court of Military Review, United States Air Force, in the above-entitled case, are forwarded for review.
2. On 9 February 1981, the accused was found guilty of a violation of the Uniform Code of Military Justice, Articles 86, 89,108 and 134,10 U.S.C. §§ 886, 889, 908, 939, and was sentenced to a bad conduct discharge, confinement at hard labor for three months, forfeiture of $250.00 per month for four months, and reduction to the grade of E-l. On 26 February 1981, the convening authority approved the sentence. On 9 April 1981, the officer exercising general court-martial jurisdiction disapproved the findings of guilty of Charge I and its Specification (violation of Article 89) and approved only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for two months, forfeiture of $250.00 per month for two months, and reduction to airman basic. On 25 September 1981, the Court of Military Review set aside the finding of guilty of Charge II and its Specification (violation of Article 108) and affirmed the remaining findings of guilty and so much of the sentence as provided for confinement at hard labor for two months.
3. It is requested that action be taken with respect to the following Issue:
WAS THE COURT OF MILITARY REVIEW CORRECT IN HOLDING THAT RETAIL MERCHANDISE OF THE ARMY AND AIR FORCE EXCHANGE SERVICE WAS NOT, UNDER THE CIRCUMSTANCES OF THIS CASE, “MILITARY PROPERTY OF THE UNITED STATES”?
(s) James Taylor, Jr.
JAMES TAYLOR, JR.
Major General, USAF
Acting The Judge Advocate General
United States Air Force
Received a copy of the foregoing Certificate of Review on this 9th day of October 1981.
(s) James P. Porter
JAMES P. PORTER
Colonel, USAF
Government Trial and Appellate Counsel Division
(s) Verlin D. Dickman
VERLIN D. DICKMAN
Colonel, USAF
Defense Services Division
The language in the Manual for Courts-Martial, U.S. Army, 1949, is identical.