(dissenting):
I respectfully disagree with the majority’s decision to dismiss the “sexual harassment” specifications (Specifications 4, 5, and 6 of Charge III). I concur with their disposition *885of other issues raised by the appellant. My reasoning is summarized below.
I. The Evidence Proved Sexual Harassment
Factually, this case is easy. The record clearly demonstrates that the appellant sexually harassed women on board Naval Air Station Barbers Point, Hawaii. Over an extended period of time, three women were the targets of his coarse remarks and gestures of a sexual nature. Two of the women were also frequently touched by the appellant in indecent ways described in the record. When the remarks and touching occurred, the appellant was a petty officer moonlighting as a shift manager at the Pizza Hut where the women worked. Two of the women (Mrs. H and Mrs. T) were wives of sailors assigned to squadrons at the air station. One of the three (P03 K) was a petty officer junior in grade to the appellant and not in his chain of command (i.e., she was a member of a squadron at the air station; he was assigned to the air station). The appellant’s conduct was not subtle; it was egregious, and indubitably one of the main reasons the court-martial members adjudged a bad-conduct discharge despite his relatively good military record.
II. Sexual Harassment Not Amounting to Maltreatment May Be Prosecuted Under the General Article
This case deals with novel specifications under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. Thus, an analysis of the case should consider principles of law stated in United States v. Guerrero, 33 M.J. 295 (C.M.A.1991), cert. denied, — U.S. -, 112 S.Ct. 1173, 117 L.Ed.2d 418 (1992) (affirming a conviction of a petty officer based on “cross-dressing”). In Guerrero, Judge Cox (citing United States v. Davis, 26 M.J. 445 (C.M.A.1988)), stated that Article 134 has two categories of proscribed conduct:
1— that which is “illegal under the common law or” statutes; and
2— “that which — however eccentric or unusual” is not unlawful in a civilian community but becomes illegal “solely because, in the military context, its effect is to prejudice good order or to discredit the service.”
Id. at 297 (emphasis in original).
Prior to evaluating the cross-dressing allegation, the Court paid deference to the requirements of due process by agreeing that Petty Officer Guerrero was on notice that conduct either prejudicial to good order and discipline or tending to be service discrediting was an offense under Article 134. The factors indicating he had such notice included his status as a petty officer, his years of service, and the requirements of Article 137, UCMJ, 10 U.S.C. § 937 (certain provisions of the UCMJ must be explained to service members at various stages in their careers).
Next, the Court concluded that cross-dressing per se was not an offense. Rather, to determine whether cross-dressing is an offense (i.e., either conduct prejudicial to good order and discipline or conduct tending to bring discredit upon the armed forces), four factors must be considered: (1) the time, (2) the place, (3) the circumstances, and (4) the purpose for the cross-dressing. Finally, the Court added one caveat:
Also, the factfinder must be certain that the prejudice or the discrediting nature of the conduct is legitimately focused toward good order and discipline or discrediting to the armed forces, and is not solely the result of the personal fears, phobias, biases, or prejudices of the witnesses.
Id. at 298.
Prior to Guerrero, this Court provided similar clarification concerning the reach of Article 134 in United States v. Carter, 23 M.J. 683 (N.M.C.M.R.1986), petition for review dismissed, 24 M.J. 229 (C.M.A.1987) (holding that enlisted fraternization under service-discrediting or discipline-prejudicing circumstances violates Article 134, assuming adequate due process notice).
In my opinion, Guerrero and Carter provide the Government a legitimate means for taking effective action to deter sexual harassment that is not a violation of Article 93, UCMJ, 10 U.S.C. § 893 (maltreatment of a subordinate). Thus, I conclude that sexual *886harassment may be the basis for a prosecution under Article 134 when the harassing conduct is prejudicial to good order and discipline or has a tendency to discredit the armed forces.
III. The Specifications Alleging Facts Constituting Sexual Harassment Stated an Offense
First, charging an offense as a course of conduct over an extended period of time is perfectly proper. More precisely, as this ease illustrates, allegations involving numerous individual acts of sexual harassment are most appropriately charged in specifications alleging a proscribed course of conduct over an extended period of time, as opposed to dozens of specifications citing individual acts (e.g., one victim claimed that over a period of several months the appellant commented on the size of her “boobs” 10 to 15 times a day— which could have been the basis of 300 to 450 charges a month. Record at 166). See United States v. Hanson, 30 M.J. 1198, 1201 (A.F.C.M.R.1990), aff'd, 32 M.J. 309 (C.M.A.), cert. denied, 500 U.S. 933, 111 S.Ct. 2054, 114 L.Ed.2d 460 (1991) (affirming conviction of an officer for maltreatment of a subordinate by engaging in a course of conduct involving inappropriate comments over a two and a half year period).
Second, in my opinion, the specifications in question meet the test for legal sufficiency. The test is not whether a specification could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, sufficiently apprises the accused of what he must be prepared to meet, and provides the accused with a record to prevent a second prosecution for the same offense. United States v. Sell, 3 C.M.A. 202, 206, 11 C.M.R. 202, 206 (1953). The specification may allege the elements either expressly or by implication. United States v. French, 31 M.J. 57, 59 (C.M.A.1990).
Because the majority concludes that the main reason for not affirming the sexual harassment convictions was instructional error by the military judge, I will not extend this discussion concerning the legal sufficiency of the specifications further, other than to note that some of my comments in Section V of this dissent concerning the instructions are equally applicable to the specifications (e.g., the insertion in the specifications of phrases lifted from Secretary of the Navy Instruction [SECNAVTNST] 5300.26A of 2 August 1989 focused the members attention on pertinent wording in statements of departmental policy).
At the bottom line, the specifications, which alleged an offense denominated as sexual harassment by all lawyers at the appellant’s trial, are classic examples of novel specifications properly drafted pursuant to principles of law stated in Guerrero and Carter.
IV. The Appellant Had Adequate Notice of the Illegality of His Conduct
To determine whether the appellant had fair notice that his conduct violated Article 134 (i.e., whether he was afforded due process of law), the critical question is whether he
could reasonably understand that his contemplated conduct might violate the statute. Notice can be gleaned, inter alia, from proof of custom, regulation or the degree to which the alleged misconduct patently violates the specified norms of the Article. The mere fact that there is some flexibility of meaning or some difficulty in determining whether marginal actions fall within the language of the statute is not determinative.
Carter, 23 M.J. at 685 (citing United States v. Van Steenwyk, 21 M.J. 795, 801 (N.M.C.M.R.1985)).
“[R]esort to the surrounding circumstances is appropriate to determine the adequacy of notice.” Van Steenwyk, 21 M.J. at 809.
Although footnote 5 of the lead opinion acknowledges that the appellant does not claim that he lacked notice that his conduct was illegal, I list the following information from the record to allay any concerns regarding due process considerations:
a. The appellant attended sexual harassment training on 29 April 1988. Prosecution Exhibit 7.
*887b. On 9 November 1990, the appellant was placed on report by a chief petty officer for sexual harassment of a female sailor, alleged violations of “Art. 134, Art. 117, Art. 89, Art. 91, Art. 92.” This led to the appellant being counselled by a Navy lieutenant whose written summary of the counselling session is crystal clear: “KNOCK IT OFF!!! ANY FURTHER REPEAT OF THIS WITH AN [W] OR ANY ONE ELSE WILL RESULT IN IMMEDIATE PROCESSING OF THIS REPORT CHIT AS WELL AS ANY NEW CHARGES. THERE IS NO ROOM FOR BEHAVIOR OF THIS KIND AND IT WILL NOT BE TOLERATED.” Prosecution 6 for Identification (not admitted in evidence). Record at 304 — 306.
c. At trial, the victims testified that they told the appellant to stop the offensive conduct directed toward them. Record at 166, 190, 194, 208, 212, and 213.
d. The appellant’s civilian defense counsel conducted extensive voir dire of the court-martial members on 6 July 1992. His questions focused the members attention on “Tailhook,” the “Tomcat Follies,” newspaper articles and messages from senior officials concerning sexual harassment, and sexual harassment training of naval personnel. For example, the civilian defense counsel asked one court member to state the number of times he had taken sexual harassment training. The member replied, “[P]retty often. I’d say at least once a year ... since I’ve been in Hawaii, probably at least two or three times, minimum.” Record at 110. Later, the civilian defense counsel asked another court member, “[Y]ou would agree, would you not, that people who engage in sexual harassment are engaging in career-endangering conduct?” “Absolutely,” replied the member. Record at 112. Then he asked another member “Do you feel you know what sexual harassment is?” The member replied, “I feel I do, yes.” Record at 126. The voir dire is significant because it demonstrates the efforts the Navy had taken prior to the date of the alleged offenses to put all hands — including the appellant — on notice that sexual harassment was improper conduct for naval personnel. It also indicates that the meaning of “sexual harassment” was common knowledge among the court-martial members, a factor to be considered when evaluating the effect of the military judge’s instructions.
Based on this record, the appellant’s status as a second class petty officer, and the requirements of Article 137, UCMJ, I am convinced that the appellant could — and did— understand that his offensive course of conduct might violate the UCMJ. Thus, in my opinion, he had the notice that satisfies the requirements of due process of law.
V. The Instructions Were Adequate and Did Not Prejudice the Appellant
The heart of the lead opinion is the conclusion that the military judge erred by failing to provide adequate instructions concerning the alleged sexual harassment charges (i.e., “[N]o standard was imparted by which to distinguish non-criminal from criminal behavior.”). Although the instructions could have been better, I conclude that they provided adequate guidance and, more importantly, that any instructional errors committed did not prejudice the appellant.
The instructions faulted by the majority concern elements of the offenses charged and certain definitions. These instructions may be summarized as follows:
a. Specifications 4, 5, and 6 of Charge III are similar specifications alleging sexual harassment in violation of Article 134, UCMJ. The elements are as follows:
(1) That at Naval Air Station, Barbers Point, Hawaii, from on or about_to_, the accused engaged in a course of conduct toward _, which course of conduct involved repeated and unwelcome comments and gestures of a sexual nature toward_ and repeated and unwelcome physical contact of_, and
(2) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
b. “Conduct prejudicial to good order and discipline” is conduct which causes a reasonably and obvious injury to good order and discipline. “Service discrediting conduct” is *888conduct which tends to harm the reputation of the service or lower it in the public esteem.
c. “Sexual harassment” includes repeated or deliberate offensive comments or gestures of a sexual nature.
The words “repeated and unwelcome comments and gestures of a sexual nature” in the instructions and specifications were not invented by the military judge or trial counsel. They were lifted from the regulation that provided guidance throughout the Navy concerning sexual harassment (SECNAVINST 5300.26A of 2 August 1989). Additionally, the military judge’s explanation of the meaning of “sexual harassment” was a direct quote from Manual for Courts-Martial, United States (MCM), 1984, Part TV, H17c(2).
In my opinion, it is significant that the phraseology used in the instructions and specifications emanated from regulations promulgated by the Secretary of the Navy and the President, in his capacity as Commander-in-Chief, because these officials can properly establish standards of conduct for naval personnel. When they establish such standards, it seems reasonable to include significant phraseology from the standards when drafting instructions and specifications describing alleged misconduct contrary to the standards, as was done in this case. Contrary to the conclusions stated in Section VI of the lead opinion, I find that the use of the phrases lifted from the Secretary of the Navy instruction and the MCM, coupled with the instructions concerning the terminal element of the Article 134 offenses, clearly indicate that the members were required to determine whether the appellant’s comments and gestures violated standards of departmental policy.
In evaluating the instructions, we must follow the law stated in United States v. Fox, 34 M.J. 99 (C.M.A.1992) (quoting from United States v. Mance, 26 M.J. 244, 255-56 (C.M.A.), cert. denied, 488 U.S. 942, 109 S.Ct. 367, 102 L.Ed.2d 356 (1988)), a case of alleged fraternization between a male Air Force officer and an enlisted female member of the Air Force:
[Wjhen a judge omits entirely any instruction on an element of the charged offense, this error may not be tested for harmlessness because, thereby, the court members are prevented from considering that element at all. In a real sense, the members in such an instance are directed to find that the evidence proves that element beyond a reasonable doubt. On the other hand, when a judge’s instruction adequately identifies an element to be resolved by the members and adequately requires that the members find the necessary predicate facts beyond a reasonable doubt, then an erroneous instruction on that element may be tested for harmlessness.
Fox at 104. The Court in Fox then observed that the error committed by the trial judge did not fit neatly into either of the categories mentioned in Mance because, even though the “custom” element of fraternization was given by the judge, he did not instruct the members as to the custom in the Air Force. Thus, the Court would not test the error for prejudice because, with regard to the “custom” element, the judge offered the members “no definition, no guidance, no focus on what is, in the Air Force, a critical requirement concerning the relationship.” Fox at 104.
In my opinion, the instructions in this case fall in the second category identified in Mance and Fox. They adequately identified the elements of the offenses and adequately required the members to find the necessary predicate facts beyond a reasonable doubt. Thus, if we find instructional errors, we must determine whether the errors are harmless.
Turning to the lead opinion in this case, I find that it places too much weight on the fact that neither Specifications 4, 5, and 6 of Charge III nor the military judge’s instructions concerning the elements of these alleged offenses contain the word “offensive.” Although inclusion of the word “offensive” in the specifications and the listing of the elements might have been wise, I do not find that the failure to include that word in either the specifications or the elements constituted error. To the contrary, I believe the instructions provided an adequate standard to distinguish innocent behavior from criminal behavior, and that the standards were properly *889based on guidance from the Secretary of the Navy and the MCM. More importantly, if the instructions fell short of some legal lodestar, the errors committed were not prejudicial to the appellant. Many reasons lead me to this juncture.
First, the instructions concerning the first element of the offenses conveyed the message that the members could only convict the appellant if they found beyond a reasonable doubt that (1) the appellant had engaged in a certain course of conduct over an extended period of time on board a naval installation, and (2) the course of conduct involved behavior prohibited by the Navy regulation concerning sexual harassment (i.e., repeated and unwelcome comments and gestures of a sexual nature and unwelcome physical contact). The instructions concerning the second element conveyed the message that a mere finding that the appellant had engaged in a certain course of conduct was inadequate to support a conviction, and that a conviction could only result from the members finding beyond a reasonable doubt that the course of conduct, under all the circumstances, was either prejudicial to good order and discipline in the armed forces or had a tendency to be service discrediting. The instructions concerning the second element adds the objectivity requirement that the lead opinion finds significantly lacking in the instructions. That is to say, the members could not convict the appellant merely because they found that he had engaged in the course of conduct stated in the explanation of the first element of the Article 134 offenses. Rather, the members were required to step back and evaluate all the circumstances of the factual situation presented and to objectively determine, based on their years of training and experience, whether the appellant’s course of conduct had either a tendency to be service discrediting or was prejudicial to good order and discipline in the armed forces. In performing that function, they were doing what courts-martial members traditionally do when considering charges alleging violations of two clauses of Article 134. More significantly, that second step in the deliberative process assured that the appellant would not be convicted solely because his conduct was below subjective standards imposed by his victims. In my opinion, the second step counters comments in the lead opinion concerning the lack of a requirement of objectivity, and provides assurances that the instructions comported with the law stated in Guerrero and Carter.
Second, although the term “offensive” was not in the elements — and not in the specifications — it was in the judge’s explanation of the meaning of sexual harassment (“Sexual harassment includes repeated or deliberate offensive comments or gestures of a sexual nature.” Record at 330.). This explanation surely put the members on notice that they could not convict the appellant of “sexual harassment” if an objective observer would conclude that the appellant’s words and actions were not offensive. More importantly, the record discloses conduct by the appellant so coarse that no reasonable person could find it to be less than offensive. Indeed, just as Justice Stewart knew obscenity when he saw it,1 the members no doubt knew from the totality of the evidence before them that the appellant’s course of conduct was so abusive and unwarranted that it mandated his conviction. Hanson, 30 M.J. at 1201. Thus, in my opinion, the failure to include “offensive” in the description of the elements of the offenses was a fact of little significance (i.e., not prejudicial error).
Third, the term “sexual harassment” was used constantly by all the parties to the trial. The explanation given concerning the meaning of “sexual harassment,” was taken from MCM, Part VI, ¶ 17. The explanation was not a definition of the term; it was merely an illustrative listing of activities that constitute sexual harassment. It did, however, assure that the members were not left in a quandary concerning the meaning of the term and the issues before them. Additionally, it is not critical that every term in an instruction be given a legal definition. Even the Court of Military Appeals occasionally finds dictionary definitions worthy of quotation (see Guerrero at 298 n. 2). Stated otherwise, I am confident that the experienced, educated, and intelligent officers on the appellant’s *890court-martial — who had themselves received training concerning sexual harassment — understood the basic meaning of sexual harassment and the standards that guided their deliberations.
Fourth, during argument on findings, the civilian defense counsel focused his attention on the assault charges and virtually conceded that the appellant’s actions were properly characterized as sexual harassment (albeit, he did not concede that Article 134 had been violated):
As I told you in the beginning, I don’t intend to discuss the last three specifications. That matter is left to you. But I ask you to look at this case for what it is: A sexual harassment case and nothing more than a sexual harassment case.
Record at 323.2 No doubt, these comments, coupled with the lack of any credible evidence indicating that the appellant’s conduct was not sexual harassment and the overwhelming evidence of sexual harassment, made the members’ decision regarding the sexual harassment offenses a relatively easy venture. In all probability, the challenging issue debated during deliberations was whether the terminal element of an Article 134 offense was proved. The comments also lessened the chances that the members were either confused or misled by the military judge’s instructions (i.e., lessened the chances of the instructions infecting the trial with prejudicial error).
Fifth, State v. Sanderson, 33 Or.App. 173, 575 P.2d 1025 (1978), quoted in the lead opinion (holding unconstitutional a sexual harassment statute prohibiting conduct that “alarmed or seriously annoyed” the victim) is inapposite. That decision involved a civilian community and had nothing to do with either a military installation or the concerns that led Congress to write Article 134. Although I have not read the Oregon statute cited in the case, I trust that it contained nothing resembling the terminal element of an offense under Article 134. The terminal element of the an offense in violation of one of the first two clauses in Article 134 adds a requirement of objectivity that was simply not present in this Oregon case.
Sixth, when second guessing the members’ decision in this case and evaluating the effect of any instructional error on their judgement, we should be mindful of a comment from the Supreme Court:
Of questions not depending upon the construction of statutes, but upon the unwritten military law or usage, within the jurisdiction of courts-martial, military or naval officers, from their training and experience, are more competent judges than the courts of common law.
Parker v. Levy, 417 U.S. 733, 749, 94 S.Ct. 2547, 2558, 41 L.Ed.2d 439 (1974) (quoting Swaim v. United States, 165 U.S. 553, 562, 17 S.Ct. 448, 451, 41 L.Ed. 823 (1897)). See also Van Steenwyk, at 808 n. 10.
VI. The Appellant’s Conduct Was Service Discrediting and Prejudicial to Good Order and Discipline in the Armed Forces
The record contains convincing proof that the appellant’s sexual harassment was clearly service discrediting and prejudicial to good order and discipline in the armed forces. Reference to a few illustrative bits of evidence should prove this point. Petty Officer K was belittled, angered, and humiliated by the appellant’s conduct. Record at 166. Comments to her were made in the presence of other service members. Record at 243. No doubt, she lost respect for him, a factor that affects good order and discipline in the armed forces. Mrs. H testified that the appellant told her that her husband, a sailor, was not a real man like he was, that her husband would not do anything if he learned of the appellant’s comments because he was not good enough for her, and that Mrs. H should live with the appellant. Mrs. H felt so bad at one time that she was going to quit working. Mrs. H told her husband about the appellant’s comments and her husband called *891the appellant about them. Record at 212 and 215. Mrs. T testified that the appellant would invite her out and say her husband, a sailor, would never know. Mrs. T witnessed sexually harassing conduct by the appellant directed toward the other two woman. Mrs. T told her husband about the appellant’s comments. Record at 187, 198, and 349. Comments directed toward Petty Officer K and Mrs. T were heard by a 17-year-old civilian cook. Record at 267.
Fortunately, in this case, the aggrieved parties used peaceful means to cause the appellant to stop his abusive conduct. However, experience tells us that the appellant’s actions could have easily led to physical confrontations. It takes little imagination to envision (a) a disgruntled sailor planting his fist on the appellant’s nose after learning of the appellant’s comments to his wife, conduct obviously contrary to good order and discipline, and (b) every one in Pizza Hut who observed appellant’s conduct concluding that the appellant is a walking, breathing discredit to the U.S. Navy.
At the bottom line, the court-martial members heard the evidence and determined that the Government proved the existence of the terminal element of the Article 134 offenses beyond a reasonable doubt. I find nothing in this record causing me to doubt the wisdom of their judgment.
VII. Unique Situation: One Victim, a Military Subordinate on a Naval Installation
One of the three victims in this case was a petty officer subordinate in grade to the appellant. Thus, she would be required to obey the appellant’s orders — even at the Pizza Hut — if faced with a situation which clearly imposed a duty on her to obey his orders (e.g., he orders her to stop participating in a fight with another sailor). Thus, arguably, sexual harassment of Petty Officer K might rise to an offense under Article 93, UCMJ (maltreatment of a subordinate). I use the term “arguably” because dicta in United States v. Curry, 28 M.J. 419, 424 (C.M.A.1989) (petty officer convicted of maltreatment by attempting to obtain a body massage from a junior female sailor not in his chain of command) indicates that the Court of Military Appeals might conclude that Petty Officer K had no duty to obey the appellant’s orders at the Pizza Hut when he was sexually harassing her and, thus, that she could not be the victim of maltreatment in violation of Article 93.
In all probability, the Government did not charge the appellant with a violation of Article 93 because of then Chief Judge Everett’s comments in Curry indicating the futility of such action: “As we understand the evidence, [the woman the appellant asked to give him a massage] had no duty which required her to obey any orders of appellant.” 28 M.J. at 424. I invite attention to these facts because they help one appreciate the problems confronting the Government when charges were drafted and the reasonableness of the course of action taken (i.e., prosecution under Article 134 on specifications alleging a course of conduct in words lifted from the existing directive on sexual harassment, rather under Article 93).
VIII. The Doctrine of Preemption is Inapplicable
Contrary to the author of the concurring opinion, I conclude that the inclusion of the alleged touching described in Specifications 4 and 5 of Charge III was not preempted by Congress or the President. The doctrine of preemption applies only if two questions are answered in the affirmative:
The primary question is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the Code; the secondary question is whether the offense charge is composed of a residuum of elements of a specific offense and asserted to be a violation of either Articles 133 or 134, which, because of their sweep, are commonly described as the general articles.
United States v. McGuinness, 35 M.J. 149, 151-152 (C.M.A.1992), cert. denied, — U.S. -, 113 S.Ct. 1364, 122 L.Ed.2d 743 (1993) (quoting United States v. Wright, 5 M.J. 106, 110-111 (C.M.A.1978)).
*892The concurring opinion appears to proclaim that allegations of physical contact cannot be included in specifications alleging sexual harassment and that any allegations of illegal physical contact must be prosecuted under some other article (e.g., Article 128). If true, such a position can unduly complicate prosecution of valid sexual harassment cases.
As indicated in this case, sexual harassment frequently involves both offensive physical contact and offensive verbal comments. True, some sexually harassing physical contact might be easily isolated, regarded as a battery, and appropriately punished under Article 128. Other sexually harassing physical contact, standing alone, might be regarded as a de minimis battery unworthy of prosecution. However, in many cases, charging separate acts of battery and verbal sexual harassment becomes unwieldy and counter-productive. As a practical matter, many cases of sexual harassment are most honestly and convincingly stated when the specifications contain allegations of both physical contact and offensive comments, as opposed to separate specifications attempting to focus attention on isolated physical and verbal conduct. Indeed, the combination of physical contact and offensive remarks in one specification charging sexual harassment can normally be expected to have a synergistic effect that conveys a most precise and accurate description of the alleged illegal conduct. Thus, absent compelling authority to the contrary, I see no good reason for us to demand that the Government slice in two those allegations of continuous misconduct involving both physical and verbal sexual harassment (i.e., that we require prosecution under two different articles of the UCMJ). To the contrary, the simple and direct way to prosecute sexual harassment is to permit allegations of both physical contact and offensive comments to be included in one specification. I find no expression of intent by either Congress or the President that mandates bifurcated charges when sexual harassment involves both physical contact and verbal comments. Thus, I conclude that the preemption doctrine is not applicable to this case.
IX. The Effect of the Lead Opinion
I fear the majority’s opinion places too many strictures on prosecution of service members who engage in sexual harassment that is not clearly a violation of Article 93. In particular, the opinion makes it difficult to prosecute a service member for sexually harassing a military dependent on board a military installation. In my opinion, Article 134, Guerrero, and Carter provide an appropriate vehicle for properly balancing the need for good order and discipline against the desire to impose only reasonable restraints on First Amendment freedoms on board our military installations.
In summary, the matters discussed above lead me to conclude that the novel sexual harassment specifications were properly drafted, that the military judge provided adequate instructions to guide the members in their deliberations, that instructional errors, if any, were not prejudicial, and that the evidence proved the offenses alleged beyond reasonable doubt. I would affirm the conviction relating to the sexual harassment charges.
. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring).
. The civilian defense counsel told the military judge at arraignment, that he would make such a concession based on directions from the appellant and their trial strategy. They intended to rely on favorable appellate action. His statement to the military judge was made after he declined to enter pleas to Specifications 4, 5, and 6 of Charge III because he did not know "what constitutes the actus reas of the offense.” Record at 65-66.