joins (concurring in part and dissenting in part):
I agree with only so much of the majority opinion as affirms appellant’s conviction of conduct prejudicial to good order and discipline, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. I disagree with the majority’s conclusion that the evidence is legally sufficient to support appellant’s conviction of resisting apprehension and assaulting a noncommissioned officer (NCO) in the execution of his office, in violation of Articles 95 and 91, UCMJ, 10 USC §§ 895 and 891, respectively.
In my view, the evidence of resisting apprehension is legally insufficient on two grounds. First, no rational person could conclude beyond a reasonable doubt that appellant knew that Sergeant (SGT) Vaden was attempting to exercise his authority as an NCO to apprehend him. What appellant saw was an enraged husband who had just attacked him. SGT Vaden’s attack on appel*258lant stopped only because Mrs. Vaden intervened. SGT Vaden was junior to appellant and not engaged in law enforcement duties. At no time did he say or do anything indicating that he was invoking his status as an NCO.
Appellant’s response to SGT Vaden’s attack was to assure SGT Vaden that he would turn himself in. SGT Vaden agreed with appellant’s offer to turn himself in, and he told appellant that he would go with him to the military police station, obviously to ensure that appellant did in fact turn himself in. Appellant’s offer to turn himself in, and SGT Vaden’s agreement with that offer, are inconsistent with any notion that SGT Vaden was trying to apprehend him.
Second, even if a rational factfinder could conclude beyond a reasonable doubt that appellant knew SGT Vaden was attempting to apprehend him, the evidence does not support a charge of resisting apprehension. Apprehension is complete when the person being apprehended submits to authority or is physically subdued. See para. 19c(3)(a), Part IV, Manual for Courts-Martial, United States (1995 ed.).1 Assuming arguendo that there was an apprehension, it occurred when appellant allegedly submitted to SGT Va-den’s control in the bedroom. From that point on, appellant was in custody. Paragraph 19c(l)(c), supra, provides that “attempts to escape from custody after the apprehension is complete do not constitute the offense of resisting apprehension.” See also United States v. Glaze, 11 MJ 176, 177 n. 1 (CMA 1981); United States v. Ridgeway, 13 MJ 742, 748 (ACMR 1982).
I also disagree with the majority’s conclusion that the evidence is legally sufficient to support appellant’s conviction of assaulting a noncommissioned officer “in the execution of his office.” SGT Vaden’s actions throughout the altercation were personal, not official. SGT Vaden’s actions were those of an avenging victim, not a sergeant in the execution of his office. His first action, physically attacking appellant, was clearly personal and inconsistent with any officiality. SGT Vaden did nothing after that attack to invoke his status as a noncommissioned officer.
Finally, in my view, there is no issue of divestiture. Divestiture occurs only when the actor holds authority by virtue of rank or position and divests himself or herself of that authority by improper conduct. See paras. 14c(l)(b) and 15c(3), Part IV, Manual, supra;2 United States v. Lewis, 7 MJ 348, 352 (CMA 1979). SGT Vaden neither held nor invoked any authority. He was junior to appellant, not engaged in law enforcement or occupying any position of authority over appellant, and never invoked or relied on his status as an NCO to apprehend or detain appellant, or to hold him in custody.
In my view, the majority’s decision is contrary to the law and the facts. Accordingly, I dissent.
. Although paragraph 19 was substantially revised in the 1998 Manual, this provision was unchanged except for being renumbered as paragraph 19c(4)(a).
. These paragraphs are unchanged in the 1998 edition.