(concurring in the result):
I find myself in the somewhat unusual position of concurring just a little bit with everyone. My concurrence with the result reached by the majority is based solely upon my concurrence with the Chief Judge in his concurring opinion that money, as a class of property, regardless of its source, should not be afforded the special protective status (a doubling of the available maximum confinement) accorded to “military property” under Article 121, UCMJ. *876In United States v. Schelin, 15 M.J. 218 (C.M.A.1983), the Court of Military Appeals noted that the 1969 Manual for Courts-Martial gave little guidance as to the meaning of “military property.” As to the present issue, the same can still be said of the 1984 Manual for Courts-Martial. The nearest indication that money was intended to be included within the category of “military property” is reference to Article of War 94, at best a distant cousin of Article 108 and one which cannot reasonably claim strict applicability to today’s Article 121.
Upon analysis, I am forced to conclude that there is simply no clear indication of present legislative intent on this issue. Until such an intent is manifested by legislative clarification, appellate courts must acknowledge they have left the realm of discerning and announcing what the law “is” and are proceeding into the realm of exercising discretion as to what the law “should be.” For my part, as stated at the outset, I do not believe that money “should be” included in the definition of military property. My view, in other words, is that money can be used to purchase military property, but it cannot qualify as military property in and of itself. It is the property it purchases, not the money itself, which has the “uniquely military nature” or will be put to a “function” which merits its inclusion in the specially-protected category of “military property”. See Schelin, supra, at 220.
As to the framework for determining whether a certain item (other than money) does or does not qualify as “military property”, I favor the approach and the reasoning expressed by Senior Judge Blommers in his dissent. The majority’s bright-line “appropriated versus nonappropriated” approach offers a tempting clarity and simplicity of application. Senior Judge Blommers’ case-by-case approach, on the other hand, offers neither clarity nor simplicity. Nevertheless, I agree with Senior Judge Blommers that the majority’s approach draws an overly simplistic distinction which is neither mandated by the Court of Military Appeals decision in United States v. Simonds, 20 M.J. 279 (C.M.A.1985), nor by logic. As noted in the majority opinion, the Simonds decision turned on the fact that the merchandise had been purchased with appropriated funds. Indeed, the accompanying language in Simonds strongly suggests that all property purchased with appropriated funds constitutes “military property”. However, it stops short of saying that only property purchased with appropriated funds can constitute “military property.” For the reasons so ably discussed by Senior Judge Blommers in his dissent, so will I.