(concurring in part and dissenting in part):
I agree that the evidence regarding the Gant incident, if relevant at all, was so *309minimally probative of any proffered purpose that its admission was plainly erroneous. Mil.R.Evid. 103(d) and 403, Manual for Courts-Martial, United States, 1969 (Revised edition). However, I disagree that appellant was necessarily prejudiced. See Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a).
The procedural rules in effect at the time of appellant’s trial stated:
Subject to jurisdictional limitations and at the discretion of the convening authority, charges against an accused, if tried at all, ordinarily should be tried at a single trial by the lowest court that has the power to adjudge an appropriate and adequate punishment.
Paras. 30g and BBh, Manual, supra. The principal exception to this preference for joinder was that, “[ojrdinarily, charges for minor derelictions should not be joined with charges for serious offenses” unless “the minor offense serves to explain the circumstances of the greater offense.” Para. 26c, Manual, supra.*
Under this “liberal” joinder policy, the incriminating evidence pertaining to each of the charges and specifications is typically presented to factfinders at the same hearing. Sometimes the charges and specifications are related; often they are not.
By contrast, admissibility of uncharged misconduct is strictly regulated for the laudable reason that people should be convicted of crime on the basis of evidence that they committed the crime, not because they are bad people. See MiLR.Evid. 404(b), Manual, supra; Manual for Courts-Martial, United States, 1984. The irony here is that, had the Government been successful in continuing the court-martial long enough to join the Gant charges to the court-martial, as it tried to do, Gant’s testimony would have been squarely before the members for its own sake, and we would not even be considering spill-over effect, much less reversing a conviction on account of it. Indeed, of all the misconduct before the court-martial, charged and uncharged, the Gant incident ranks among the least in apparent significance.
By far the most severe of the charges were those alleging the brutal rape and sodomy of another young woman, a German. She was attacked while riding her bicycle alone shortly after midnight. Certain aspects of this attack virtually coincided with those of the alleged Coghlan rape, including the near suffocation of the victim and the particular words used in demanding that the victim fellate the perpetrator. In addition, appellant was admittedly out and about that night in two vehicles closely matching the description of vehicles seen in the vicinity of the attack on the German woman. One of these cars was observed driving on the bicycle path immediately after the rape. The driver of this car got out and searched the immediate area of the rape. Evidently, his purpose was to remove the bicycle (which was never recovered) and any other identifying items.
Several hours later, while the German police were surveying the rape scene, the second vehicle was spotted nearby. According to the witness, a nearby resident, “I could observe that this vehicle was driving down various roads at several times, and it also caught my attention that the left taillight of this vehicle wasn’t working.” According to the witness, this vehicle drove back and forth “[tjhree to four times.” Shortly thereafter, about 4:30 *310a.m., appellant was stopped and briefly detained by German police officials. He was driving a vehicle (belonging to a girlfriend) that closely matched the description of the second vehicle, and the left taillight was out. He denied knowing the location of the village in which the rape had occurred, and his account of his whereabouts purported to exclude the possibility that he had inadvertently stumbled on the crime scene. Further, based upon serological comparisons, appellant could not be ruled out as the perpetrator. Finally, items of clothing similar to those worn by the perpetrator were seized from among appellant’s possessions.
Despite these and other points of similarity between the two rape charges, the court members acquitted appellant of the attack on the German woman — and rightfully so. Not only was the victim unable to identify her assailant, but the evidence against appellant, in its totality, lacked that definite, conclusive degree of certainty necessary to link him to the crime beyond a reasonable doubt. In other words, despite any risk of Gant spill-over, the court members did their job. Moreover, in comparison with the evidence tending to link appellant to this rape, the Gant incident was trivial.
Another charge of which appellant was acquitted alleged that he had approached another enlisted woman, a Specialist Four Rosado, and “displayed], through his trousers, his erect penis, grabb[ed] through his trousers, his erect penis with his hand, and stat[ed], ‘See what you do to me? You make me homy. Let’s go out together,’ or words to that effect.” A separate charge alleged that he later endeavored to impede a court-martial and alter the testimony of Rosado “by pointing his finger at her, shaking his finger in her face, and stating in an angry and threatening tone of voice, ‘You don’t tell them I made any passes at you. You don’t tell them nothing,’ or words to that effect.”
By the time of trial, Rosado had separated from the service and returned to the United States. Despite its efforts, the Government was unable to locate her. The prosecution attempted to support its case on these charges with her deposition, previously recorded.
This latter allegation, the attempt to impede justice, was strikingly similar to an event which was uncharged, but was made known to the court-martial in connection with the Coghlan incident. Yet another enlisted woman, Specialist Four Somerville, testified that she was a neighbor of Ms. Coghlan, knew appellant, and was a peripheral witness to appellant’s encounter with Ms. Coghlan. According to Somerville’s testimony, appellant approached her a week or so after the encounter, when the heat was on him, and tried to tell her what to say to the criminal investigators. She rebuffed this attempt with language which, if directed to an officer under ordinary circumstances, would have assured her own conviction by court-martial and punitive discharge. Appellant, however, said nothing in response to these inflammatory remarks.
Notwithstanding Gant’s testimony and despite the similarity of the Somerville-Coghlan incident, the court members acquitted appellant of the Rosado conduct-unbecoming and endeavoring-to-impede-justice charges. Spill-over effect did not seem to be operating there either.
Regarding the Coghlan offenses, the court members had the opportunity to observe her testimony as she related her version of the events. They had before them photographs of the injuries inflicted upon her. They heard the doctors’ description of the nature and extent of the trauma and the unlikelihood that such injuries could have been inflicted by mere consensual sexual activity. The members observed the victim break down on the stand as she relived the terror of her experience. There being no evidence that she had a theatrical background, the members were in an excellent position to judge how convincing her presentation was.
The members also observed Specialist Somerville as she described appellant’s odd behavior immediately after the fact and again a week later — behavior that strongly *311belied an innocent state of mind. Here, too, the members were in an excellent position to judge whether Somerville was fabricating.
Finally, the members were able to observe appellant as he walked them through his version of Coghlan's spontaneous and intensely passionate lust for his body. As before, the members were in superb position to judge the credibility of his account. Their findings indicate that, notwithstanding his denials, his performance left them convinced beyond a reasonable doubt of his guilt.
Like my Brothers, I am occasionally troubled by the potential for spill-over when more than one offense is charged. United States v. Hogan, 20 MJ 71, 73 (CMA 1985). The legitimate evidentiary concerns against convicting people because they are bad, rather than because the evidence proves they committed a particular crime, do not vanish when the other misconduct happens to support criminal charges. However, I recognize that there are often cogent reasons in a military environment for combining charges into a single court-martial— charges which, in a civilian context, should be tried separately. In the military, the convening authority is granted initial discretion whether to combine charges; it is then for the accused to move for severance. This latter did not occur here.
In the instant case, a plethora of misconduct and questionable conduct, both charged and uncharged, was before the court members. My survey above represents but highlights. In my estimation, the findings on the Coghlan rape-sodomy were abundantly supported by the record. Moreover, the court members demonstrated their prowess in separating wheat from chaff and in applying the most stringent standards to the evidence. I am convinced that their decision was based overwhelmingly on their estimation of the credibility of the protagonists themselves. The Gant testimony, offered for so-called modus operandi, amounted to nothing when compared to the other evidence properly before the court.
The irony of my Brothers’ resolution is that, if the appropriate statutes of limitations have not run and the Government is able to pull the parties together again for another trial, the case could consist of the charges of raping and sodomizing Ms. Coghlan, and that of indecently assaulting Sergeant Gant. I question whether that would be a meaningful improvement over what happened here.
For these reasons, I would affirm the decision below.
The current military rules (Manual for Courts-Martial, United States, 1984) provide as follows:
R.C.M. 307(c)(4): Charges and specifications alleging all known offenses by an accused may be preferred at the same time.
R.C.M. 601(e)(2): In the discretion of the convening authority, two or more offenses charged against an accused may be referred to the same court-martial for trial, whether serious or minor offenses or both, regardless whether .related.
Fed.R.Crim.P. 8(a) is more restrictive, providing:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(Emphasis added.)