(dissenting):
I find no reason under the law to take as restrictive a view of the term “military property” as my brothers do in this case. I therefore dissent. In my judgment, the better approach would be to resolve a question as to the property’s status, military or nonmilitary, on a case-by-case basis, rather than carve out an entire class of property and define it as “nonmilitary” just because such property does not derive its existence from “funds appropriated by Congress” and is being held by a Nonappropriated Fund Instrumentality (NAFI) for its exclusive use. That is precisely how I interpret the Court's holding in this case.
I concur with past holdings of this Court addressing the question, and do not believe my view of how this case should be resolved is in conflict with any holdings by the United States Court of Military Appeals. Clearly, property held for retail sale by the Army-Air Force Exchange Service (AAFES), no different than any other department or convenience store in this country, should not be considered military property. United States v. Schelin, 12 M.J. 575 (A.F.C.M.R.1981), aff'd 15 M.J. 218 (C.M.A.1983). Likewise, property being held for bingo prizes at an Officers’ or Noncommissioned Officers’ Club should not be so classified. United States v. Geisler, 37 C.M.R. 530 (A.B.R.1966). But to say that the same result should be reached as to all nonappropriated fund property being held for the exclusive use of a NAFI goes too far.
Nor do I believe that the Court of Military Appeals most recent decision address*877ing the issue of what can constitute military property, United States v. Simonds, 20 M.J. 279 (C.M.A.1985), can be interpreted as a basis for reaching that conclusion. Simonds dealt with a camera taken from a ship’s store. Property in a ship’s store is available for sale to sailors assigned to the ship, particularly while at sea. It is undoubtedly equivalent to a mini-base exchange. Its purpose is to enhance morale. The Court noted its earlier holding in Schelin that retail merchandise belonging to AAFES was not military property, but stated:
The significant factual difference here is that the merchandise in the ship’s store is purchased by an appropriated-fund activity____ We may presume that items purchased with funds appropriated by Congress to a military department fall within the definition of ‘military property-’
20 M.J. at 280. I do not read the Court’s holding as an endorsement of the opposite; that is, that all property belonging to a NAFI is therefore not military property. In fact, many types of property used exclusively by NAFIs are authorized to be purchased with appropriated funds. Does that mean that all property so purchased is, therefore, “military property?” Simonds might be read to support an affirmative answer to that question.
The Court of Military Appeals in Simonds quoted at some length, with approval, from matters submitted by Navy appellate government counsel. As pertaining to a relationship between property in the ship’s store and performance of a military function, counsel argued:
‘The purpose of a ship’s store is to provide a convenient and reliable source where sailors, particularly while at sea, can obtain their ordinary needs at affordable prices. In fact, while at sea, the ship’s store is the only source for such needs____ Consequently, a ship’s store is factually distinguishable from a Post or Base Exchange, or even the Navy Exchange, which serves only as alternative sources for satisfying such needs ashore. In other words, the ashore service member may frequent a local exchange as well as countless civilian establishments, while the sailor at sea has no such choice.’
‘Thus, a ship’s store performs a morale and welfare function which is an integral part of the naval forces. Providing for the health, morale, and welfare of the crew is as much a military purpose as is providing weapons and ammunition. Indeed, the maintenance of health, morale, and welfare of the crew is essential to the successful completion of the command’s mission. Since ship’s store merchandise is intended and furnished for use by crew members, its wrongful disposition and sale has a direct adverse impact on the morale and welfare of the crew.’
20 M.J. at 280-281. If one accepts this rationale, then merchandise at a retail store at any of the numerous small United States land-based military installations and sites scattered throughout the world, located perhaps hundreds of miles from the nearest civilian community of any size, or on a remote mountain top, should be considered military property even if run by AAFES. This highlights the principle difficulty I have with the approach taken by the Air Force Court in this case. In my judgment, the focus of inquiry should be directed at the functional relationship between the property involved and military mission accomplishment, not what instrumentality within the Government has possession and control over it at the time an offense against that property is committed. Whether the source of the property was appropriated or nonappropriated funds is certainly a factor to be considered. The foundation for this analysis should be the definition of “military property” contained in the Manual for Courts-Martial as refined by the Court of Military Appeals.
As the majority opinion states, “military property” is defined in the Manual as “all property, real or personal, owned, held, or used by one of the armed forces of the United States.” MCM, Part IV, paragraph 32 c(l). AAFES retail merchandise is specifically excluded therefrom. In Schelin the Court held:
*878In the absence of any Congressional guidance, it seems most likely to us that ‘military property’ was selected for special protection due to its role in the national defense. In other words, it is either the uniquely military nature of the property itself, or the function to which it is put, that determines whether it is ‘military property’____ We do not suggest that it is only tanks, cannons, or bombers that merit the protection ... for many items of ordinary derivation are daily put to military use.
15 M.J. at 220 (emphasis added). In Simonds, the Court quoted this definition of military property from the Schelin case. 20 M.J. at 280.
Applying the Manual’s definition of “military property” and the above set forth caselaw, I conclude that the billeting funds involved in the instant ease were military property of the United States. Judge Leonard summarizes the uses to which these funds are put in the first portion of his opinion, i.e., to help maintain and upgrade these quarters. The base billeting manager testified at trial that such funds could also be used to pay the salaries of NAF billeting staff members and cleaning personnel. Regarding who stays in these quarters, the following testimony was provided by the billeting manager:
ATC: ... Could you please tell us who stays at the billeting quarters?
WIT: Transients.
Q: And what does that entail?
A: It’s either people that are TDY [temporary duty assignment] to the base who are here to help in some capacity; students who are here for training; or it could be military retired “Space A” [space available basis] people.
She stated that TDY personnel and students, who are there pursuant to military orders, take priority as to assignment of quarters. When people in these categories stay at such facilities they are entitled to reimbursement from appropriated funds for room fees paid to the NAFI.
It is common knowledge to any of us who have been in the military a number of years, that the vast majority of the rooms in Air Force temporary billeting facilities are occupied by servicemembers or civilian employees who are at an installation TDY — there to provide operational assistance or receive training. Most who stay at temporary lodging facilities are personnel newly assigned to the installation and their dependents, who reside there until their permanent quarters become available. Thus, those who reside in these facilities are there to learn or do a job in furtherance of mission performance at that installation. Having such facilities conveniently available on an installation, as opposed to relying on off base motels or hotels for this service, also assists mission accomplishment.
As a former trial judge who traveled a circuit comprised of more than 15 military bases spread throughout the Northeastern United States, I know how important comfortable quarters are while you are on the road. Good quarters are morale and welfare enhancers, much like ships’ stores. United States v. Simonds, supra.
In sum, temporary billeting instrumentalities perform a function directly related to military mission accomplishment. I conclude, without hesitation, that their assets, supplies and facilities are “military property.”
I make two other observations. I perceive an underlying concern on the part of a number of my brothers simply because theft of “military” property now permits increased punishment. MCM, Part IV, paragraph 46 e (1984). The drafters’ Analysis should ameliorate any such concern. It provides:
1986 Amendment: The maximum punishments for larceny were revised as they relate to larceny of military property to make them consistent with the punishments under Article 108 and paragraph 32e, Part IV, MCM, 1984. Before this amendment, a person who stole military property faced less punishment than a person who willfully damaged, destroyed, or disposed of military property. The revised punishments are also consistent with 18 U.S.C. 641.
*879The majority opinion also points out that one reason for maintaining a restrictive view of what constitutes military property “is the fact that Article 108, UCMJ, criminalizes negligent conduct in dealing with such property____” (Emphasis added.) I first note that the damage, destruction, or loss of such property through neglect carries a considerably less maximum punishment than than the willful commission of that offense or, now, the theft of such property. See MCM, Part IV, paragraphs 32 e(2), 32 e(3), and 46 e(1)(a) and (e) (1984). Finally, offenses that criminalize negligent conduct are certainly not uncommon under military law. See, e.g., MCM, Part IV, paragraphs 11 (missing movement), 16 c(3) (dereliction of duty), 20 c(2) (suffering a prisoner to escape through neglect), 23 c(3) (endangering safety of a command, unit, place, ship, or military property), 27 c(1) (failing to secure public property taken from the enemy), 34 (hazarding of vessel), 44 e(2) (involuntary manslaughter), 80 (firearm, discharging through negligence), and 85 (negligent homicide).
I would affirm the findings of guilty as returned by the trial court and the sentence as approved by the convening authority.
Judge SPILLMAN concurs in the dissent.