(concurring):
I concur in the result announced by the majority, however, I believe that additional comment is needed. The conviction under Specification 4 of Charge VI (wrongful sexual intercourse) is indeed fatally flawed in my view, and I state the reasons for this conclusion in part to make clear that Article 134 is not an unrestricted vehicle for defining new military offenses.
The Government should be cautious in using Article 134 to create new offenses. See United States v. Stocken, 17 M.J. 826, 830 (A.C.M.R.1984). Clause 1 of Article 134 involves “disorders and neglects to the prejudice of good order and discipline in the armed forces.” Clause 2 involves “conduct of a nature to bring discredit upon the armed forces.” The elements listed in the Manual for Courts-Martial (MCM), United States, 1984, indicate only that the act must either tend to prejudice good order and discipline or be of a nature to bring discredit upon the armed forces to constitute an offense. While the elements suggest that Article 134 is a license to create punishable offenses, in fact the creation of novel offenses under clauses 1 and 2 requires careful drafting of the specification to make clear what facts must be proved to warrant conviction. The military judge must then analyze the specification and evidence and draft clear instructions that inform the members what they must be convinced of beyond a reasonable doubt in order to vote for conviction.1 Basic to alleging and proving a punishable offense is the existence and identification of a wrongful act or acts that meet the requirements of either or both of the clauses.
I begin by noting that if an act is protected as part of the constitutional freedoms enjoyed by servicemembers, it is not punishable even if it seems to result in actual prejudice to good order and discipline or bring discredit upon the armed force. Cf. United States v. Johanns, 20 M.J. 155, 161 (C.M.A.1985). Though military efficiency or image may suffer, we permit a service-member’s proper exercise of a basic right as being essential to the maintenance of fundamental individual freedoms. Presently, an act of private fornication by consenting adults is not constitutionally protected, especially if it is accompanied by additional factors that adversely effect good order and discipline in the armed forces or discredit the armed forces.
Under either clause, a servieemember must have or be given adequate notice that his contemplated conduct is punishable. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Notice may be shown in different ways. If the act is malum in se, that is, it is inherently wrongful and known to be so by anyone in our society, the notice requirement is met. See United States v. Davis, 26 M.J. 445, 448 (C.M.A.1988). Common law offenses are of this nature as are those crimes found in most of our penal codes. In the military services, certain acts may be inher*948ently wrongful and known to be so by any reasonable servicemember due to their occurrence in the military context, even though they are not prohibited in the civilian sector. See id.; United States v. Lowe, 4 U.S.C.M.A. 654, 16 C.M.R. 228 (1954). If the act is malum prohibitum, that is, wrong because it is prohibited by regulation, order, or even policy, the notice requirement may be met if the proscription applies to the accused. Of course, if this is the basis for prosecution the existence of the regulation, order, or policy statement and its applicability to the accused must be proved as an essential element of the offense. Lastly, the existence of an established custom of the military service may satisfy the notice requirement. The existence of the custom must be proved. If the custom is set forth in a punitive regulation or order, violation of it should be charged under Article 92. Para. 60(c)(2)(b), Part IV, MCM.2
The evidence indicates that private sexual intercourse between consenting adults is not a crime in the Commonwealth of Massachusetts where these acts took place, nor is it inherently wrongful in the military services. United States v. Hickson, 22 M.J. 146 (C.M.A.1986); United States v. Berry, 6 U.S.C.M.A. 609, 20 C.M.R. 325 (1956); United States v. Carr, 28 M.J. 661 (N.M.C.M.R.1989). Sexual intercourse between a recruiter and a person who is eligible to enlist into the armed forces, standing alone, is not inherently wrongful in the military context absent additional aggravating circumstances. Cf. United States v. Woods, 27 M.J. 749 (N.M.C.M.R.1988), aff'd 28 M.J. 318 (1989). The Government proved no regulation, order, or policy that prohibited such an act, nor did it prove that the act violated an established custom of the Naval Service. I conclude, therefore, that this appellant had no notice that his acts were punishable under the Code. On this ground, the conviction may not stand.
The lack of notice to appellant that his acts of sexual intercourse with these women were punishable is inextricably bound to the Government’s general failure to plead and prove factors that establish that appellant’s acts were sufficiently wrongful to be punishable since fornication alone without additional aggravating factors is not an offense. See Hickson; Berry; Carr. In oral argument, the Government seemed to emphasize that appellant abused his status as a recruiter in effecting these liaisons. The specification does not set forth this factor clearly but does indicate that two of the women were members of the Marine Junior Reserve Officer Training Corps (MJROTC). The importance of this status to the conviction is unclear. If it is a crime for a recruiter to have sexual intercourse with any member of the ROTC residing in the area of his recruiting responsibilities, it would be a crime for the recruiter to have consensual sexual intercourse with a college student in ROTC of his own age. If the listing of this JROTC status is important as indicating that it is punishable for a recruiter to have sexual intercourse with someone who is eligible to enlist, but who is not obligated to do so, then it may logically follow that any person residing in the area of the recruiter’s recruiting responsibilities of requisite age and possessing the mental and physical qualifications to enlist in the armed forces is off-limits as a sexual partner for the recruiter. If senior officers in our recruiting commands believe that recruiters may not have consensual, non-deviate sexual relations with any member of the ROTC or any potential recruit in the *949area of the recruiter’s responsibilities, they should immediately inform their subordinates of that fact in an unambiguously drafted regulation, order, or policy statement.
The Government brief alludes to another factor that may make appellant’s acts of sexual intercourse punishable; namely, that they were not private because, though cut off from view by a closed door, they took place in a bedroom of an occupied apartment under conditions whereby others in the apartment could reasonably conclude that sexual intercourse was occurring. This factor cannot be found in the language of the specification nor did the military judge set it out in his instructions to the members. An act of sexual intercourse is not private when “it is performed in such a place and under such circumstances that it is reasonably likely to be seen by others.” Carr at 665 (emphasis added). The acts of which appellant was convicted took place in a bedroom behind a closed door. Even absent Carr, I could not take seriously the contention that, in today’s military services wherein many unmarried service-members share houses and apartments due in part to limited financial resources, an act of sexual intercourse taking place behind closed doors in a house or apartment loses its private character simply because others in the house or apartment deduce or speculate that it is occurring.
The failure of proof of aggravating factors that leads to the legal conclusion that this conviction cannot be affirmed also results in factual insufficiency to support affirmance. In this case, the Government prosecuted on the basis that appellant’s acts both tended to prejudice good order and discipline and discredit the Naval Service. Under the first clause, the tendency of the act to prejudice good order and discipline must be reasonably direct and palpable in order to be punishable. See Johanns; United States v. Holiday, 4 U.S.C.M.A. 454, 16 C.M.R. 28 (1954); para. 60(c)(2)(a), Part IV, MCM. The evidence is insufficient to convince me that the acts alleged and proved in this case tended to prejudice good order and discipline in a reasonably direct and palpable way. To prove service-discrediting conduct, the Government did call witnesses to show that appellant’s acts injured the reputation of the Naval Service. The test is not, however, whether someone can be found and brought into court to testify that in his eyes the service was discredited by the accused’s acts. The test, rather, is whether a reasonable person with knowledge of all the facts and circumstances would conclude that the appellant’s acts, as established by the evidence, tended to discredit the armed forces in a substantial manner. I am unconvinced that the allegations and proof in this case establish this service-discrediting nature.
In this case, the failure to plead aggravating circumstances and the amorphous nature of the military judge’s instruction invited the members to determine without any real guidance that appellant’s acts were wrongful and therefore punishable. That the evidence proved appellant to be a thoroughly disreputable person made it easy for them to vote for conviction. Defective character alone is not punishable, however, and I concur in finding that this conviction cannot stand.
. Trial defense counsel did not object to the instructions given. The majority has decided to determine whether the evidence itself can support the conviction, accordingly, I do not decide whether the instructions were so plainly inadequate that the conviction must be set aside on this ground alone. United States v. Wales, 31 M.J. 301 (C.M.A.1990) provides an excellent example of the problems that a poorly drafted specification creates for a military judge required to draft a findings instruction.
. Two other principles limit liability under Article 134. A mens rea must accompany the act that is sufficiently culpable to support a criminal sanction. For example, punishment may not be based on simple negligence absent a statutory proscription or "ancient usage.” See, e.g., United States v. Manos, 8 U.S.C.M.A. 734, 25 C.M.R. 238 (1958). In this case, appellant’s acts were intentional and thus the requirement of an adequate mens rea is met. Also, prosecution under either clause may be barred by the preemption doctrine. Para. 60(c)(5)(a), Part IV, MCM; see e.g., United States v. Kick, 7 M.J. 82 (C.M.A.1979); United States v. Norris, 2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953). The Code and the MCM clearly set out several kinds of consensual sexual crimes, but their elements do not encompass the acts of appellant. No case to date holds that Article 134 novel offenses involving consensual sexual acts are preempted by similar offenses listed under the other punitive Articles.