(concurring):
PHYSICAL CONTACT
I find that the touchings described in Specifications 4 and 5 are preempted by Congress and the President under Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928, and those paragraphs of the Manual for Courts-Martial, United States, 1984, delineating other assaultive behaviors which contain aggravating factors increasing the maximum permissible punishment. In the MCM, the President expressly “prohibits application of Article 134 to conduct covered by [UCMJ] Articles 80 through 132.”; MCM, 1984, Part IV ¶600(5)(a); see also United States v. McGuinness, 35 M.J. 149 (C.M.A.1992), cert. denied, — U.S. -, 113 S.Ct. 1364, 122 L.Ed.2d 743 (1993); United States v. Curry, 35 M.J. 359 (C.M.A.1992); United States v. Asfeld, 30 M.J. 917, 923 (A.C.M.R.1990). By this “preemption,” I mean that a new illegal touching, with fewer elements than the current assaultive touching would require to be proven and instructed upon, cannot be created through imaginative pleading under Article 134, UCMJ.
In each of those “other” assault offenses in the MCM, some even drawn under Article 134, UCMJ, the basic assault elements of Article 128, UCMJ, are still necessary elements, the members are to be instructed on them, and no fact-finder can convict unless they are convinced beyond a reasonable doubt of their existence, along with the other elements. Here, the military judge failed to instruct the members on the elements of assault that would make the “repeated and unwelcome physical contact of [victims]” a criminal offense, and perhaps shoehorn it into Article 134 (for whatever reason).
COMMENTS AND GESTURES
In addressing the remaining portions of the three specifications, I note that in the MCM, 1969 (Rev.) there was a form for a specification under Article 134, UCMJ, la-belled: “Indecent, insulting, or obscene language communicated to a female or a child under the age of 16 years.” Id., App. A6-23, ¶ 158. The language of that sample specification is not repeated in the 1984 Manual for Courts-Martial and, as indicated in the Analysis, the use of the terms “insulting” and “to a female” have been deliberately removed. Part TV, ¶ 89, MCM, United States, 1984, App. 21, A21-102. “[E]xcept for cases involving an affront to military authority ... insulting language between soldiers is not a violation of Article 134 unless the language conveys a libidinous message.” Id. (citing United States v. Linyear, 3 M.J. 1027 (N.M.C.M.R.1977), petition denied, 5 M.J. 269 (C.M.A.1978)); see also United States v. Choleva, 33 C.M.R. 599 (N.B.R.1962). In the appellant’s case, the instructions to the members allowed an open-ended offense of “repeated and unwelcome comments of a sexual nature toward [victim]” so long as a fact-finder would agree that the conduct was prejudicial to good order and discipline in the armed forces or of such a nature as to bring discredit to the armed forces, whether or not it was mean-spirited teasing, actual torment, or a libidinous message was intended to be conveyed. In United States v. Henderson, 32 M.J. 941 (N.M.C.M.R.1991), aff'd, 34 M.J. 174 (C.M.A.1992), this Court stated that not all disreputable and service discrediting conduct violates the general article.
[Although the government demonstrated that the appellant’s conduct was morally reprehensible and was discrediting to the Marine Corps as testified to by several witnesses at trial, it failed to establish that appellant’s conduct ... was prohibited by law, regulation or directive, or that appellant was fairly put on notice that his actions were discouraged as not being conduct becoming a recruiter, or that he abused his position.
32 M.J. at 945.
This case is the evil to be avoided that Judge Lawrence warned of in his concurring opinion in Henderson, where he stated:
*884The 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.” ... 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.
Id. at 947 (footnote omitted). In this ease I believe the specifications were deficient and this led to the military judge inadequately instructing the members. The offense stated in these three specifications, and the instructions given by the military judge, have resulted in the conviction of the offense of “engag[ing] in a course of conduct toward [the victims] which ... involved repeated and unwelcome comments of a sexual nature” and was prejudicial to good order and discipline or was service discrediting at a civilian-run pizza parlor on board the naval air station. Is that a crime? The appellant was NOT convicted of assault and he was NOT convicted of indecent language, although he was charged with both.
All parties to the case continually referred to “sexual harassment” as the gravamen of these three offenses. But, if this is a ease of sexual harassment, then I would look to the federal law and military policy for some guidance as to what are the boundaries of that offense and what would be required as pleadings, proof, and instructions to members. I believe that it must start with an element of “work place” or “work-related,” just as the current “sexual harassment” aspect of maltreatment of a subordinate under Article 93, (UCMJ) 10 U.S.C. § 893, requires that the victim be “subject to the orders” of the tormentor. Id. The latest policy contained on page 3 of SECNAVINST 5300.26B of 6 Jan 93 applies to “all conduct which occurs in or impacts a DOD working environment as defined in enclosure (2).” Enclosure (2) defines work environment as:
The workplace or any other place that is work-connected, as well as the conditions or atmosphere under which people are required to work. Example of work environment include, but are not limited to, an office, an entire office building, a DOD base or installation, DOD ships, aircraft or vehicles, anywhere when engaged in official DON business, as well as command-sponsored social, recreational and sporting events, regardless of location.
Because of the specification and instructional deficiencies in this record, I do not need to determine whether a civilian-run pizza parlor on board a military installation, at which military personnel and their spouses or children might work, is that kind of work place, or whether Article 93, UCMJ, reaches this non-Department of the Navy, non-Department of Defense superior/subordinate relationship.
Assuming that this is that kind of workplace, another element, as recognized by the Chief Judge in his opinion, would be that the unwelcome sexual behavior in the workplace interferes with another person’s work performance or creates a “hostile environment.” The potential also exists that the conduct creating the hostile environment must be “severe or pervasive.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). If, then, the conduct described was prejudicial to good order and discipline or service discrediting and the members were correctly instructed on these elements, a valid military crime might be established and properly charged as a form of disorderly conduct.
I also join in the Chief Judge’s opinion in footnote 9 recognizing the insightfulness of Lieutenant Commander Chema’s analysis.