(concurring in part and dissenting in part):
I agree with my Brothers that appellant was not guilty of signing false official statements and larceny. Instead, the court-martial should have given full faith and credit to the North Carolina decree. “It is a well-established rule that a state has the power to determine how its residents enter into a marital relationship.” *240United States v. Seay, 718 F.2d 1279, 1285 (4th Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2677, 81 L.Ed.2d 873 (1984), citing Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed. 654 (1887). “Variations in state law concerning the prerequisites to a valid marriage may work to the advantage of a resident.” Id. The North Carolina court’s declaration that appellant’s divorce was void ab initio had the legal effect of rendering appellant married throughout the time period. He thereby became liable for support and maintenance of his wife, and he may have incurred other liabilities imposed upon him by North Carolina law. If he was liable for support and maintenance, then he was entitled to dependent benefits.
More particularly, his conduct failed to satisfy the elements of the offenses because the monies received by him were rightfully his, and his representations of being married were, in retrospect, correct. Accordingly he did not wrongfully take, obtain, or withhold the property of another, and he did not sign an official statement that was false. See paras. 31 b and 46 b, Part IV, Manual for Courts-Martial, United States, 1984.
To me this aspect of the case is relatively simple. If a servicemember is accused of a crime arising out of his marital status and the issue is whether he was married, then the state has the power to declare his status. Here, the state declared that his divorce was void ab initio. That ends the matter as far as I am concerned. I would not assume that the state trial judge issued an order in contravention of North Carolina law or that appellant’s attorney would attempt to defraud the state court or the court-martial, for such would be grounds for disbarment in most jurisdictions.
The Government was not without remedy if it thought the order was issued contrary to North Carolina law. Most jurisdictions have procedures whereby parties aggrieved by a judgment can interplead into the action and have their rights declared. Apparently, this was not done here. The Government cannot now be heard to complain that the order was issued contrary to law. This does not, however, end the inquiry for me.
Implicit in the judge’s findings is rejection of appellant’s claim that he did not realize he was divorced and, thus, he lacked the requisite intent to commit the offenses. Therefore, for purposes of my analysis, I assume appellant fully intended to commit the offenses. See Art. 67(d), Uniform Code of Military Justice, 10 U.S.C. § 867(d).
Since he intended to defraud the Government, the question remains whether he could be guilty of attempt. Article 80(a), UCMJ, 10 U.S.C. § 880, provides:
An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.
Attempt is a lesser-included offense of the underlying offense. United States v. Henderson, 20 M.J. 87 (CMA 1985); United States v. La Fontant, 16 M.J. 236 (CMA 1983).
At common law, it was not a defense to attempt if it was factually impossible for the accused to commit the crime. 4 Wharton’s Criminal Law § 745 at 578, 581-84 (C. Torcia 14th ed. 1981). Thus, “a defendant is guilty of an attempt when, with intent to steal, he reaches into the pocket of another, but the pocket is empty____” Id. at 581 (footnote omitted).
“Legal impossibility,” on the other hand, was a different matter:
It should be recognized that impossibility really has no bearing upon the question of attempt unless it is a case of legal impossibility. Legal impossibility has been distinguished from factual impossibility. The position is that while factual impossibility of success does not prevent the attempt from being made, there can be no attempt in a case involving legal impossibility. What it boils down to is this: Attempting to do what is not a crime is not attempting to commit a crime.
*241R. Perkins and R. Boyce, Criminal Law 632 (3d ed. 1982) (emphasis added; footnotes omitted).
The trend, however, has been to eliminate entirely the defense of impossibility, factual and legal. Wharton’s, supra at 585; ALI Model Penal Code and Commentaries § 5.01 and n. 89. As indicated by Perkins, supra at 634-35, we joined this trend long ago:
The complexities of the concepts associated with legal and factual impossibility have led some jurisdictions to expressly by statute abandon the concept and focus on the accused’s state of mind as he believed the circumstances to be. This is the position taken by the Model Penal Code and has found support in recent court decisions. Under such an approach, in an exhaustively researched opinion, the Court of Military Appeals [United States v. Thomas, 13 USCMA 278, 32 CMR 278 (1962)] upheld the conviction of two servicemen for attempted rape where unknown to the defendants the victim at the time of the act was dead rather than merely drunk as the defendants had assumed.
(Footnotes omitted.)
Under this reasoning, the “impossibility” of appellant’s committing the underlying offenses is not a defense to attempting to commit them. In appropriate circumstances, we have affirmed findings of guilty of the lesser-included offense of attempt, United States v. La Fontant, supra, and I would do so on these facts. At a minimum, I would remand the case to the Court of Military Review for its consideration of the issue.*
Accordingly, I dissent from the result.
In pertinent part, the trial judge outlined his rationale in convicting appellant of the substantive offenses as follows:
An element of the false statement is the accused’s knowing statement to be false at the time of the making. So the time of the making is the critical point to be considered. North Carolina declaring a marriage void ab initio two years later still does not change the material status at the time of the making of the statement. Using this rationale there is no requirement for the court to look to an offense under Article 80, an attempt. In other words, the 14 November 1986 decision does not create a change in facts mandating a finding of attempting to make a false statement under an Article 80 offense, as the court must look at the facts as they existed at the time the statement or statements or documents were generated or executed.
The right to receive the married with dependent BAQ entitlement rate is lost when one is divorced and does not become a vested entitlement again until one is remarried. Thus the right to receive the married rate did not come into existence until 14 November 1986. Prior to that date the Air Force had the greater possessory interest in the monies and the BAQ entitlement. A greater possessory interest than the accused had. And it was only after the 14 November 1986 decision that the right to the monetary payments concerning the BAQ with dependent rate again came into the existence of Sergeant Allen.
(Emphasis added.)
As is evident, the route taken by the trial judge obviated the need to reach the attempt issue. By the same token, however, he made no rulings inconsistent or contradictory with the attempt theory. Indeed, he found appellant guilty of the greater, encompassing offenses in every instance. Nothing in logic or law prevents an appellate court from affirming a lesser-included offense if the lesser offense is unaffected by the flaw found in the greater offense.