(dissenting):
In United States v. Harville, 14 MJ 270 (CMA 1982), this Court was presented with facts that, in all material respects, parallel those in the case at bar. Unadorned, Harville’s testimony in his contested trial was that he believed that he had what amounted to continuing permission from his close friend to borrow her car to go to Texas and that, when he left a note on her door informing her that he had that day taken her car to Texas, he had done all that was required. Unfortunately, his friend did not get Harville’s note, and she reported her car missing.
This Court judged that the friend’s testimony on behalf of the Government “only indicates that the unexplained disappearance of [her] car resulted from a communication break-down between [her] and appellant as to the extent notice was to be given prior to departure” and, thus, was “insufficient as a matter of law to support” Harville’s “conviction of wrongful appropriation.” Id. at 272. Supporting this conclusion, the Court earlier had reasoned:
“Not every wrongful taking constitutes a violation of Article 121,” Uniform Code of Military Justice, 10 USC § 921. United States v. Hayes, 8 USCMA 627, 629, 25 CMR 131, 133 (1958); see United States v. Pelton, 19 USCMA 131, 41 CMR 131 (1969); United States v. Caid, 13 USCMA 348, 32 CMR 348 (1962). “[T]he mere ‘borrowing’ of an article of property without the prior consent of the owner does not make out either of the offenses under Article 121.” United States v. Hayes, supra at 629-30, 25 CMR at 133-34. There must be a criminal taking in order to make out an offense under Article 121. United States v. Bridges, 12 USCMA 96, 30 CMR 96 (1961). Borrowing an item—even without the owner’s consent—does not per se constitute an Article 121 offense. Mens rea is required.
14 MJ at 271.
Here, appellant had the expressed permission of his friend to borrow the friend’s car for the day on January 10. Appellant told his friend, “I should—I would be back by 5:00—5 o’clock, approximately.” Later that day, apparently at approximately that time, appellant returned to the area and telephoned his friend to advise him that he was back. His friend was not there, so appellant left a message with the CQ to tell his friend that he was back and he still had the car.
About 6:00 p.m., appellant decided to go AWOL and used his friend’s car to drive to a nearby town. There, he again telephoned his friend; again he was unsuccessful. After having “a couple of drinks” and checking into a hotel, appellant tried again, at about 9:00 p.m., to telephone his friend about the car. Again, though, the friend was not there; and, again, appellant left a message with the CQ that he had called. Unfortunately for appellant, as it had been for Harville, the intended recipient of the messages did not get them, and the friend reported the car stolen.
Appellant made clear that he believed that his friend would let him continue to use the car, and the friend so testified at trial, as the majority acknowledges. Thus, as in Harville, appellant indicated that he did only what he believed his friend would let him do and that he fulfilled his responsibility to his friend by leaving messages. Under these circumstances, I do not believe that the military judge adequately resolved the clear inconsistency between appellant’s guilty pleas and his insistence on facts that do not demonstrate the requisite mens rea.
As Harville instructed, the necessary criminal intent—the mens rea —is not made out by the mere borrowing of a friend’s property. Appellant believed that his friend would permit him to keep the car beyond the agreed-upon return time (and, in fact, because the friend testified that he would have so agreed, that belief certainly was not fanciful), and he tried three times to telephone his friend to obtain expressed permission, leaving messages when unable to reach him.
As in Harville, appellant’s unresolved assertions reflect that the report of a stolen car entirely “resulted from a communica*148tion break-down,” 14 MJ at 272, between appellant and his friend. If this, as a matter of law, is criminal intent, then most of America belongs behind bars.
I would reverse the decision of the Court of Military Review as to Charge II and its specification, set aside the finding thereon and the sentence, and authorize a rehearing thereon.