(dissenting):
I dissent. First, for a number of reasons, I am unsettled by that portion of the lead opinion that suggests that the defense of duress, as that defense is defined and applied in military jurisprudence, is limited to threats posed “by third persons,” 34 MJ at 330 n. 2, and does not include threats “from some unavoidable circumstance, condition, or fact which leaves no choice of action,” id. at 328; and I certainly disagree with footnote 2 in which the author judge expresses her personal conclusion that the defense is so limited. Second, viewing that defense in the light in which it historically has been recognized in military jurisprudence, I believe that the military judge and the Court of Military Review erred by applying an incorrect legal analysis to determine whether the defense was reasonably raised by the evidence.
*337i
Although the matter is not squarely presented to this Court or briefed by the parties, over half of the legal discussion of the lead opinion is dedicated to questioning whether the “necessity defense” exists in military jurisprudence—and, as mentioned above, the author judge answers that question for herself in the negative. Several aspects of this discussion and the author judge’s conclusion disturb me.
A
Although it is unstated, the notion is necessarily implicit in the lead opinion that the Manual for Courts-Martial is the conclusive authority for whether a concept is an available affirmative defense in military law. To illustrate, the objectionable portion of that opinion begins:
Manual for Courts-Martial, United States, 1984, specifically provides a defense for crimes committed due to the unlawful coercion by third parties (duress) and for crimes committed in the proper performance of a legal duty (justification). This Manual for Courts-Martial does not specifically mention the defense for crimes committed due to a perceived threat from some unavoidable circumstance, condition, or fact which leaves no choice of action (necessity).
34 MJ at 328-329 (emphasis added). A good while later, near the end of that portion of the opinion, it observes:
A question remains whether a fair reading of RCM 916(h), [Manual, supra,] its Discussion and Analysis (and cases cited therein), supports limiting the defense to its common-law applications or rather to expanding the defense to include coercion from third persons or pressure from any physical or natural force.
34 MJ at 329 (emphasis added). Finally, that section ends shortly thereafter with this statement:
We need not resolve the issue whether RCM 916(h) was written broadly or narrowly because in this case we have no doubt that appellant was not entitled to an instruction on either defense.
34 MJ at 330 (emphasis added; footnote omitted). I know of no legal basis for the notion that is reflected by this language. See Art. 36(a), Uniform Code of Military Justice, 10 USC § 836(a). Availability of defenses is an issue of substantive law; as such, the Manual is no more conclusive on that question than it is on the matter of the elements of one of the crimes specifically set out in the Uniform Code of Military Justice. Id.
B
Though acknowledging that what it calls the “necessity defense” is “ ‘anciently woven into the fabric of our culture,’ ” the majority downplays the scope of its acceptance by asserting, “The necessity defense is one which is not recognized in about one-half of American jurisdictions.” 34 MJ at 328. My reading of the source relied upon for that assertion, however, does not support it.
The article cited—Milhizer, Necessity and the Military Justice System: A Proposed Special Defense, 121 Mil.L.Rev. 95, 96 (1988)—urges clearcut recognition of the necessity defense and, in the process, states that it is “explicitly included as part of the Model Penal Code, and ‘is recognized in about one-half of American jurisdictions.’ ” The author’s quotation is from a 1984 text, and in the accompanying footnote he opines: “Indeed, this statement probably underestimates the growing acceptance of the necessity defense. See infra notes 109-22 and accompanying text.” 121 Mil. Rev. at 96 n. 6.
The notes and text referenced by the author support his expanded estimation. Specifically, he later writes:
At least three federal circuit courts have explicitly recognized the necessity defense. No recent federal case purports to categorically reject the defense of necessity. Accordingly, especially when considered in combination with earlier federal precedent, a strong case can be made that the necessity defense has *338gained general acceptance in federal law.
Numerous state courts have also applied the necessity defense absent specific statutory authorization____
At least twenty other states and three territories or protectorates have codified some variation of the necessity defense____
Id. at 109-10 (footnotes omitted; emphasis added). Thus, the 1988 article cited by the lead opinion acknowledges that the necessity defense is experiencing “growing acceptance”:
The “defense has gained general acceptance in federal law,” has been codified in “[a]t least twenty ... states and three territories,” and has been applied in “[Numerous [other] state courts.” This does not reflect support for the lead opinion’s assertion that the defense “is not recognized in about one-half of American jurisdictions.”
C
Finally, as to whether the “necessity defense” is available in courts-martial, I must comment both on the lead opinion’s discussion that questions whether military courts have applied it and on the author judge’s personal observation in footnote 2 of her opinion which opines that RCM 916(h) does not include it; but see conclusion of part B of this opinion.
In footnote 2, the author judge states:
“In my view the plain language of RCM 916(h), Manual for Courts-Martial, United States, 1984, its Discussion, and the Analysis (and eases cited therein) leads to the conclusion that the duress defense applies only to cases where the coercion is asserted by third persons.” It is submitted that—when properly construed— the language of the rule, the accompanying Discussion, and the Analysis of the rule do not support this conclusion.*
RCM 916(h), which acknowledges the defense of “[cjoercion or duress,” defines it as follows:
It is a defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply.
Nowhere in this provision is there even an implied limitation as to the source of the threat of death or serious bodily injury that will excuse an accused’s coerced act.
The Discussion that accompanies this rule reads:
The immediacy of the harm necessary may vary with the circumstances. For example, a threat to kill a person’s wife the next day may be immediate if the person has no opportunity to contact law enforcement officials or otherwise protect the intended victim or avoid committing the offense before then.
This Discussion addresses only the immediacy of the harm that is feared, not the source of the harm. If the author judge is construing the sole example given to demonstrate the immediacy element to suggest that this defines the whole universe of the source—an aspect not even indirectly mentioned in the Discussion—such suggestion is a non sequitur.
Finally, the Analysis of RCM 916(h) states:
(h) Coercion or duress. This subsection is based on paragraph 216/of MCM, 1969 (Rev.). Paragraph 216/required that the fear of the accused be that the accused would be harmed. This test was too *339narrow, as the fear of injury to relatives or others may be a basis for this defense. United States v. Jemmings, 1 MJ 414 (CMA 1976); United States v. Pinkston, 18 USCMA 261, 39 CMR 261 (1969). The discussion is based on United States v. Jemmings, supra.
Manual, supra at A21-57 (Change 2). There is no indication at all in this “plain language” that the defense is limited as to the source of the threat. Paragraph 216/ Manual for Courts-Martial, United States, 1969 (Revised edition), upon which the rule was based, contained none; and the only deviation from paragraph 216/ that the drafters of the rule acknowledged was to expand the potential victims of the threat to include others than the accused. Although the two cases cited do happen to involve threats posed by third persons, there is no indication anywhere in the language of those opinions that the Court perceived that the defense was limited to such a source.
In sum, there is no language—“plain” or otherwise—to even suggest that, in the evolution of military jurisprudence, what has been called the defense of duress was limited to threats posed by third persons.
In this regard, I note that the lead opinion contends that “[mjilitary courts ... have been reluctant to apply the necessity defense by judicial fiat. As with the case at bar, military courts have instead analyzed such criminal acts under the rubric of the duress defense.” 34 MJ at 329. I put aside for the moment the related questions whether such application by military courts of a necessity defense would be by judicial fiat and, if so, the implied impropriety of such judicial fiat. Here, I pause to point out that, regardless of what “rubric” has been used, the fact is that military courts have acknowledged availability of a defense where the source of a threat is other than a third party—and with no apparent discomfort.
In such cases, the courts have analyzed the persuasiveness of the defense in the case before it in the same way as it has where the threat is from a third person. The cases cited by the lead opinion demonstrate as much. See United States v. Tatty, 17 MJ 1127, 1129 (NMCMR) (Where an accused had pleaded guilty, the court found incredible the accused’s appellate claim that, in the military, he could refuse to obey an order where the mission would put him “ ‘in harm’s way.’ ”), pet. denied, 19 MJ 237 (1984); United States v. Montford, 13 MJ 829, 831 (ACMR 1982) (where the claimed duress emanated from the accused’s “brother-in-law’s continued ‘harassment’ of his family” but the record did not reflect that the accused was “apprehensive of immediate death or serious bodily harm for his family”); United States v. Guzman, 3 MJ 740, 742 (NCMR) (“It is not possible to infer that appellant could reasonably have feared that immediate death or serious bodily injury would occur____” from his performing his assigned duties.), rev’d on other grounds, 4 MJ 115 (CMA 1977).
As to the related questions momentarily put aside earlier regarding military courts doing this by “judicial fiat,” I offer this observation. As the foregoing makes clear, nothing in the historical evolution of the Manual for Courts-Martial implies any limitation on availability of the duress defense that is linked to the source of the threat. Accordingly, whatever reliance the majority places on the need for the presence of an affirmative defense in the Manual, I suggest that their fears are assuaged. Moreover, I earlier expressed my views about the limit to the conclusiveness of the inclusion or exclusion of a substantive matter in the Manual. It is the responsibility of military courts and this Court to assure that due process and fundamental fairness govern our system of justice; pejoratively labeling that concern as “judicial fiat” does not reduce its availability or its legitimacy.
D
In sum, the lead opinion questions whether what it describes as the “necessity defense” is available to a military accused at a court-martial, and the author judge per*340sonally answers that question in the negative. I do not share either view.
As that opinion acknowledges, that defense is “ ‘anciently woven into the fabric of our culture.’ ” 34 MJ at 328. It is woven, as well, into the fabric of military justice. Although RCM 916(h) is entitled “[cjoercion or duress,” the rule itself does not mention any of the buzzwords of “coercion,” “duress,” or “necessity.” RCM 916(h) says nothing whatsoever about the source of the “reasonable apprehension” it recognizes; in the process, therefore, it acknowledges that the source of “a reasonable” fear “that the accused or another innocent person would be immediately killed or ... suffer serious bodily harm” is not legally or logically relevant. In short, in military jurisprudence, “necessity” is incorporated in what historically has been labeled—accurately or not—“duress.”
It makes little difference whether “necessity” is separately recognized or is found within “duress,” as RCM 916(h) treats it. Even the elements of “necessity,” as set out in the lead opinion, differ little in substance from those of duress, except for the source of the threat. What is important is this:
Regardless what it is called, the notion that an accused can be compelled to avoid immediate death or serious bodily harm to some innocent person by committing some lesser act which otherwise would be criminal must remain a concept that is “ ‘anciently woven into the fabric of our culture.’ ” Today, the lead opinion tears at that fabric; the author judge rends it.
In the process of questioning/renouncing a legally appropriate and humanely sensible defense that no one in the military justice system, until today, has refused to embrace, the lead opinion would have this Court become the only Federal court in recent times to shun an affirmative defense based on the source of the reasonable fear of immediate death or serious bodily harm. See Part I B of this opinion, supra. That would not be a bright day for this Court— or for military justice.
II
As the majority at least acknowledges, “When a defense is reasonably raised by some evidence, it must be the subject of instruction if the trial is by members____” United States v. Williams, 21 MJ 360, 362 (CMA 1986). Thus, unlike the situation where the contention in this Court is that the evidence is legally insufficient to sustain a conviction, the sole focus of our concern here is on the quantity (“some evidence”) and quality (“reasonably raised”) of the defense evidence. The relative weight of the prosecution’s contrary evidence is not relevant to this appeal.
It is in this respect that I believe the military judge and the Court of Military Review misstepped. While purporting to look for “some evidence” offered by the defense of the elements of duress, see RCM 916(h), their focus on the prosecution’s evidence belies this claim. The majority of this Court similarly errs when it concludes that no affirmative defense was raised by the evidence; while phrasing its view in terms of whether appellant’s fear was “reasonable,” the majority’s textual discussion of—and emphasis on—the prosecution’s evidence is telling.
For the reasons and upon the evidence more fully set out by the Chief Judge in his dissenting opinion, I believe that there was, indeed, “some evidence” that “reasonably raised” the defense of duress. It is for the factfinder at trial—not the military judge as a matter of law and not the Court of Military Review ab initio as a matter of fact—to weigh its credibility against the Government’s evidence to the contrary.
Accordingly, I would reverse the decision below.
Moreover, the Federal and State cases cited in footnote 2 all involved "economic" coercion, which has uniformly been rejected as a valid basis for the defense of duress. See R. Perkins and R. Boyce, Criminal Law 1067 (3d ed. 1982).