(concurring):
Appellant was found guilty of the following-offense, in violation of Article 93, Uniform Code of Military Justice, 10 USC § 893.
CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 93
SPECIFICATION I: In that SGT Paul Fuller, U.S. Army, at Babenhausen, Gex~many, on or about 28 December 1996, was cruel toward, and did oppx'ess and mahreat PFC [M], a pei'son subject to his orders, [by] having sexual relations with her after she became extremely intoxicated and sexually harassing her in that he made deliberate or repeated offensive comments of a sexual nature.
(R. 699, App. Ex. XXXIII).
The question before us is not whether this specification as noted above fails to state a criminal offense. See RCM 907(b)(1)(B) and 307(c)(3), Manual for Courts-Martial, United *113States (1995 ed.). It does. See para. 17c (2), Part IV, Manual, supra (assault, improper punishment, and sexual harassment may constitute this offense). The question before us is whether there was sufficient evidence admitted at appellant’s court-martial for a reasonable factfinder to find beyond a reasonable doubt that the charged offense as alleged occurred. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
I agree that there was no evidence presented in this case that appellant “sexually harassed” the alleged victim, a junior enlisted person. See para. 17c (2), supra (“sexual harassment includes influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature.”) (emphasis added). The absence of evidence of coercion on the basis of rank removes this case from the scope of Article 93, UCMJ, 10 USC § 893. This record shows only consensual sex between a noncommissioned officer and a private who were both extremely intoxicated.