                        UNITED STATES, Appellee

                                    v.

                  Gabriel R. CONTRERAS, Senior Airman
                       U.S. Air Force, Appellant

                              No. 09-0754

                         Crim. App. No. 37233

       United States Court of Appeals for the Armed Forces

                         Argued April 7, 2010

                         Decided June 29, 2010

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and STUCKY, JJ. joined. BAKER, J., filed a
separate opinion concurring in the result.


                                 Counsel

For Appellant: Captain Phillip T. Korman (argued); Major
Shannon A. Bennett and Major Michael A. Burnat (on brief);
Colonel James B. Roan.

For Appellee: Captain Naomi N. Porterfield (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, and
Gerald R. Bruce, Esq. (on brief).


Military Judge:    Mark L. Allred


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Contreras, No. 09-0754/AF


     Judge RYAN delivered the opinion of the Court.

     The charges in this case stem from an evening of drinking

that culminated in Appellant and another male airman entering

the room of a female airman and each performing sexual acts with

her in the presence of the other.    A general court-martial

convicted Appellant, in accordance with his pleas, of one

specification of indecent acts (a violation of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006))

and, contrary to his pleas, of one specification each of

conspiracy, rape, and housebreaking (violations of Articles 81,

120, and 130, UCMJ, 10 U.S.C. §§ 881, 920, 930 (2006),

respectively).1   A panel composed of officer and enlisted members

sentenced Appellant to a dishonorable discharge, one year of

confinement, forfeiture of all pay and allowances, and reduction

to the grade of E-1.   The convening authority disapproved the

rape conviction and altered the sentence to a bad-conduct

discharge, five months of confinement, forfeitures of all pay

and allowances, and reduction to E-1.   The United States Air

Force Court of Criminal Appeals (CCA) affirmed the altered

findings and sentence.   United States v. Contreras, No. ACM

37233, 2009 WL 1508120, at *6 (A.F. Ct. Crim. App. May 28,

2009).


1
  Appellant was also charged with, but found not guilty of, one
specification of indecent assault under Article 134, UCMJ.

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United States v. Contreras, No. 09-0754/AF


     We granted review of the following issue:

     WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE
     BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS
     WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY
     MILITARY OFFENSE.

As detailed below, we conclude that indecent acts with another,

a violation of Article 134, UCMJ, is not a purely military

offense.

                             DISCUSSION

     Article 130, UCMJ, outlaws unlawful entry into “the

building or structure of another with intent to commit a

criminal offense therein.”   The President, however, has narrowed

this language, stating that the definition of “criminal offense”

does not extend to “an act or omission constituting a purely

military offense.”   Manual for Courts-Martial, United States pt.

IV, para. 56.c(3) (2005 ed.) (MCM).2      Appellant argues that the

housebreaking specification failed to state an offense because




2
  The President’s analysis of the punitive articles is
persuasive, but not binding, authority. United States v.
Miller, 67 M.J. 87, 89 (C.A.A.F. 2008) (citing United States v.
Miller, 47 M.J. 352, 356 (C.A.A.F. 1997)). However, the
Government expressly stated at oral argument that it was not
challenging this limitation on the language of Article 130,
UCMJ. Moreover, “[w]here the President’s narrowing construction
is favorable to an accused and is not inconsistent with the
language of a statute, ‘we will not disturb the President’s
narrowing construction, which is an appropriate Executive branch
limitation on the conduct subject to prosecution.’” United
States v. Guess, 48 M.J. 69, 71 (C.A.A.F. 1998) (quoting United
States v. Davis, 47 M.J. 484, 486-87 (C.A.A.F. 1998)).

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United States v. Contreras, No. 09-0754/AF


indecent acts (at the time a violation of Article 134, UCMJ)3 is

a purely military offense and thus cannot serve as the

underlying criminal offense he allegedly had the intent to

commit.   This appeal thus continues our inquiry, begun last term

in United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009), into

what constitutes a “purely military offense.”

                                 A.

     Whether a particular Article 130, UCMJ, “criminal offense”

is a “purely military offense” is a question of law, which we

review de novo.    See United States v. Rendon, 58 M.J. 221, 224

(C.A.A.F. 2003).   Although the concept of a purely military

offense predates the UCMJ by several decades, the MCM has never

defined the phrase,4 and neither party here has been able to

explain either the genesis or purpose of this limit on Article

3
  For crimes committed after October 1, 2007, indecent acts falls
under Article 120(k), UCMJ. National Defense Authorization Act
for Fiscal Year 2006, Pub. L. No. 109-163, § 552(a)(2)(f), 119
Stat. 3136, 3263 (2006).
4
  The closest we have to an early MCM definition is in a
separately compiled drafters’ history of the 1951 MCM that --
while discussing the jurisdictional rules that eventually became
Rule for Courts-Martial (R.C.M.) 201, regarding exclusive and
non-exclusive jurisdiction -- defines purely military offenses
as “those offenses which are not generally denounced by a civil
system of justice. They are such offenses as absence without
leave, desertion, disrespect towards officers . . . and similar
offenses of a military character.” Charles L. Decker et al.,
Legal and Legislative Basis, Manual for Courts-Martial, United
States 14 (1951); accord MCM, Analysis of Rules for Courts-
Martial app. 21 at A21-8 (2008 ed.) [hereinafter Drafters’
Analysis] (“Military offenses are those, such as unauthorized
absence, disrespect, and disobedience, which have no analog in
civilian criminal law.”).

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United States v. Contreras, No. 09-0754/AF


130, UCMJ, prosecutions.   Almost every case referring to purely

military offenses is focused on jurisdictional issues, see,

e.g., Woodrick v. Divich, 24 M.J. 147, 150 (C.M.A. 1987); United

States v. Ornelas, 2 C.M.A. 96, 97, 6 C.M.R. 96, 97 (1952), and

among those cases there is disagreement as to how the test for

determining whether something is a purely military offense is

formulated.5

       Given the absence of guidance, we are left with a number of

possible approaches, of which the parties urge two:   Appellant

believes that we should determine whether indecent acts is a

purely military offense by reference to the elements of the

offense itself; the Government believes that we should do so by

looking at the gravamen of the act comprising the criminal

offense and asking whether it is an act that is, or could be, a

criminal offense under the law of any state or under federal

law.

       The CCA in this case adopted the latter approach.   Although

it recognized that Article 134, UCMJ, requires proof of one of

5
  See, e.g., United States v. Marsh, 15 M.J. 252, 254 (C.M.A.
1983) (limiting purely military offenses to those offenses where
the accused’s status as a servicemember is an element of the
offense); United States v. Bailey, 6 M.J. 965, 968 (N.C.M.R.
1979) (en banc) (“In a purely military offense the accused’s
status [as a member of the military] is always a part of, or
fundamentally underlies, one of the elements, but it is not,
itself, a separate element.”); United States v. Rubenstein, 19
C.M.R. 709, 788 (A.F.B.R. 1955) (citing numerous cases and
treatises for definition of purely military offense as “an
offense denounced only by military law”).

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United States v. Contreras, No. 09-0754/AF


two “military element[s]” (that the act or omission was

“prejudicial to good order and discipline” or “service

discrediting”), the CCA reasoned that because a Minnesota

statute, Minn. Stat. § 617.23 (2009), criminalized conduct

similar to the military’s definition of indecent acts, indecent

acts was not a purely military offense.   2009 WL 1508120, at *3.

                                 B.

     The Government asks us to adopt the CCA’s approach and

consider state laws that arguably prohibit the conduct that

constituted the “indecent acts” in this case.   But this approach

is inconsistent with Conliffe, our only published opinion

analyzing purely military offenses in the context of the

housebreaking statute, Article 130, UCMJ.

     In Conliffe, a United States Military Academy cadet

unlawfully entered both the barracks room of a fellow cadet and

an Academy sports team’s locker room, where he set up cameras to

record women changing clothes and showering.    67 M.J. at 130.

He was charged with, and pleaded guilty to, three specifications

of housebreaking, with the intended criminal offense upon entry

for each specification being conduct unbecoming an officer and a

gentleman (an Article 133, UCMJ, 10 U.S.C. § 933 (2000),

offense).   67 M.J. at 129-30.   We held that the housebreaking

convictions could not stand because Article 133, UCMJ, is a

purely military offense.   67 M.J. at 132-33.   The Government


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United States v. Contreras, No. 09-0754/AF


invited us in Conliffe to engage in a survey of state law

similar to what the CCA did here, and to reference state laws

criminalizing voyeurism (the conduct that was the basis for the

Article 133, UCMJ, charge) to determine that the Article 133,

UCMJ, offense was not a purely military offense.   67 M.J. at 133

n.2.   But we expressly declined that invitation, id., focusing

instead on the fact that Article 133, UCMJ:

       necessarily requires proof that the accused is a
       commissioned officer, cadet, or midshipman because the
       conduct must have disgraced or dishonored the accused
       in his or her official capacity. . . . Only a
       commissioned military officer, cadet, or midshipman
       can commit the offense and it is only a court-martial
       that has jurisdiction to prosecute such an offense.

67 M.J. at 132 (citations and quotation marks omitted).

       Our analysis focused on the status of the offender under

the statute itself:   Could Article 133, UCMJ, be violated by a

person who is not a member of the military?   The answer was

clearly “no.”   By its own terms, Article 133, UCMJ, requires

that the accused be a “commissioned officer, cadet, or

midshipman,” and “[t]he focus of Article 133, UCMJ, is the

effect of the accused’s conduct on his status as an officer,

cadet, or midshipman.”   Id.   This focus on status was consistent

with Marsh, where we determined, in another context, that

unauthorized absence, Article 86, UCMJ, 10 U.S.C. § 886 (1982),

was a “‘peculiarly military’ offense, for by its express terms




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United States v. Contreras, No. 09-0754/AF


the statutory prohibition applie[d] only to a ‘member of the

armed forces.’”   15 M.J. at 254.

     Neither the CCA nor the parties to this case have given us

a good reason to depart from this elements-based approach, which

determines whether an offense is a “purely military offense” by

reference to whether the elements of the underlying crime,

either directly or by necessary implication, require that the

accused be a member of the military.      Nor is the Court aware of

any important development in the short time since Conliffe was

decided that would lead us to reconsider this analytic

framework.

     Moreover, this approach has the benefit of being consistent

with the historical context in which the MCM was created.      Part

of the genesis behind the modern MCM was the understanding that

military justice may be administered by non-lawyers, see United

States Army, The Army Lawyer:   A History of the Judge Advocate

General’s Corps, 1775-1975 206 (1975), sometimes in distant

locations with only a MCM to guide them.      We are not convinced

that the President expected these non-specialists to conduct a

fifty-state survey before deciding whether to charge a

servicemember with housebreaking.6      It is equally as consistent



6
  Even if one were to conduct such a survey, it would only lead
to more questions: Do the jurisdictions that prohibit the
conduct need to actually enforce the statute? How many

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United States v. Contreras, No. 09-0754/AF


with the stated purpose and historical context of the MCM that

the President intended a simple, bright-line test that could be

easily applied and determined by reference to the MCM itself.

See MCM, Drafters’ Analysis app. 21 at A21-1 (“[I]t was

determined that the Manual for Courts-Martial should be

sufficiently comprehensive, accessible, and understandable so it

could be reliably used to dispose of matters in the military

justice system properly, without the necessity to consult other

sources, as much as reasonably possible.”) (emphasis added).

     Therefore, consistent with our decision in Conliffe, we

decline to determine whether an offense is a purely military

offense by conducting a survey of, or making other reference to,

state and federal law.   We devolve instead to consideration of

the elements of the underlying offense.

                                  C.

     In this case, the underlying offense in the housebreaking

specification is indecent acts.    At the time Appellant committed

his crimes, indecent acts with another was prohibited under

Article 134, UCMJ.   The statutory text of Article 134, UCMJ,

provides that:

     Though not specifically mentioned in this chapter, all
     disorders and neglects to the prejudice of good order
     and discipline in the armed forces, all conduct of a
     nature to bring discredit upon the armed forces, and


jurisdictions must outlaw similar conduct before a crime loses
its purely military character?

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United States v. Contreras, No. 09-0754/AF


     crimes and offenses not capital, of which persons
     subject to this chapter may be guilty, shall be taken
     cognizance of by a general, special, or summary court-
     martial, according to the nature and degree of the
     offense, and shall be punished at the discretion of
     that court.

The President, in the discussion section of the MCM, provides

further limitations to this broad statutory language, stating

that in order to punish indecent acts with another under Article

134, UCMJ, the Government must prove:

     (1) That the accused committed a certain wrongful act
     with a certain person;
     (2) That the act was indecent; and
     (3) 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.

MCM pt. IV, para. 90.b.

     Article 134, UCMJ, by its terms, applies to anyone “subject

to this chapter.”   Under the UCMJ, that phrase includes a

variety of individuals who are not in the military.   See Article

2(a), UCMJ, 10 U.S.C. § 802(a) (2006).   Appellant’s contention

that any crime charged under clause 1 or 2 of Article 134, UCMJ,

must be a purely military offense is therefore incorrect -- the

text of the UCMJ provides that Article 134, UCMJ, might be

violated by persons who are not and never have been in the

military.7


7
  Referencing Article 2(a), UCMJ, in the context of determining
what constitutes a purely military offense does not answer or
prejudge the altogether different question of whether non-

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United States v. Contreras, No. 09-0754/AF


        Of course, the MCM further limits the application of some

offenses listed under Article 134, UCMJ, to military members

only.    See, e.g., MCM pt. IV, paras. 83.b (fraternization); 84.b

(gambling with subordinate).    These are purely military

offenses.    Other crimes, however, are not so limited, nor would

anyone otherwise consider them to be purely military offenses

despite the necessity of proving and pleading that the conduct

was service discrediting or prejudicial to good order and

discipline.    See, e.g., id. paras. 66.b (bribery and graft);

92.b (kidnapping); 97.b (pandering and prostitution).8



servicemembers may be prosecuted under the UCMJ. Whether
something is a “purely military offense” depends on whether the
UCMJ limits prosecution for the offense to servicemembers or
contemplates the prosecution of a non-servicemember, not on
whether a non-servicemember may in fact be prosecuted in a
particular case. See, e.g., United States v. Stebbins, 61 M.J.
366, 369 (C.A.A.F. 2005) (holding that in determining whether
death was the maximum authorized punishment for rape a court
“need not answer the question of whether [the accused] may
actually be sentenced to death”); Willenbring v. Neurauter, 48
M.J. 152, 180 (C.A.A.F. 1998) (holding that rape was a capital
crime for statute of limitation purposes regardless of whether
the necessary factors were present to sentence the accused to
death in that case); United States v. Ealy, 363 F.3d 292, 296-97
(4th Cir. 2004) (holding that the statutory question of whether
to apply the limitation period for capital or for non-capital
offenses did not depend on whether the death penalty could be
constitutionally imposed for the offense in question); United
States v. Manning, 56 F.3d 1188, 1195-96 (9th Cir. 1995) (same).
8
  Of course, as always, the President’s analysis of the punitive
articles is persuasive authority and may potentially further
limit the application of some punitive articles to military
members only, just as he limited the application of the
housebreaking statute to cases where the underlying offense was
something other than a purely military offense. See supra note
2 and accompanying text. This Court can consider such a

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United States v. Contreras, No. 09-0754/AF


     The application of Article 134, UCMJ, to punish indecent

acts with another is not limited to military members, either

expressly or by necessary implication.   Consequently,

Appellant’s housebreaking specification stated a viable offense

when it alleged he unlawfully entered a fellow airman’s room

with the intent to commit indecent acts.

                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




Presidential limitation while applying an elements-based
approach. Contra Contreras, __ M.J. at __ (5) (Baker, J.,
concurring in result). And in the unlikely event that we are
presented with a case where a person unlawfully entered the
building or structure of another with the intent to jump from a
vessel, wrongfully cohabitate therein, or any of the other
examples described by the concurring opinion, see id. at __ (2 &
n.2, 4-5), we are confident that we can fairly address those
situations under the framework set forth in Conliffe and further
explained here.


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United States v. Contreras, No. 09-0754/AF


     BAKER, Judge (concurring in the result):

     I agree with the conclusion in this case:   the offense of

indecent acts as charged under clause 1 or 2 of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006),

is not a purely military offense.   However, I disagree with the

Court’s analysis in reaching this conclusion.

     In particular, the majority adopts an “elements test” to

determine whether an offense is “purely military” in nature:

          Therefore, consistent with our decision in
     Conliffe, we decline to determine whether an offense
     is a purely military offense by conducting a survey
     of, or making other reference to, state and federal
     law. We devolve instead to consideration of the
     elements of the underlying offense.

          . . . .

          Article 134, UCMJ, by its terms, applies to
     anyone “subject to this chapter.” Under the UCMJ,
     that phrase includes a variety of individuals who are
     not in the military. See Article 2(a), UCMJ, 10
     U.S.C. § 802(a) (2006). Appellant’s contention that
     any crime charged under clause 1 or 2 of Article 134,
     UCMJ, must be a purely military offense is therefore
     incorrect -- the text of the UCMJ provides that
     Article 134 might be violated by persons who are not
     and never have been in the military.

United States v. Contreras, __ M.J. __ (9-10) (C.A.A.F. 2010).1

In short, because the text of clause 1 of Article 134, UCMJ,


1
  The majority cites United States v. Conliffe, 67 M.J. 127
(C.A.A.F. 2009), in support of its “elements-based” approach,
suggesting that Conliffe was based on the statutory status of a
commissioned officer, i.e., that the element of the offense
includes one’s status as a commissioned officer. To the
contrary, the Conliffe analysis was contextual. The analysis
United States v. Contreras, No. 09-0754/AF


refers to “persons subject to this chapter,” and Article 2,

UCMJ, 10 U.S.C. § 802 (2006), potentially reaches civilians, the

majority concludes that the offense of indecent acts is not a

purely military offense.   Of course, by the same “elements”

reasoning, effecting an unlawful enlistment, failing to obey a

general regulation, hazarding a vessel, and malingering would

not be purely military offenses.2    Such a conclusion, as a

practical matter, largely may be irrelevant in the context of

Article 130, UCMJ, 10 U.S.C. § 930 (2006); however, the term has

jurisdictional implications as well.    The President has employed

the term in Rule for Courts-Martial 201(d)(1) in the

jurisdictional context stating, “Courts-martial have exclusive

jurisdiction of purely military offenses.”    Moreover, the



was not exclusive, but rather focused on the nature of the
offense: “The focus of Article 133, UCMJ, is the effect of the
accused’s conduct on his status as an officer, cadet, or
midshipmen. . . .” Id. at 132. This reference to status is not
statutory, but rather directed to an officer’s status as a
leader. As a result, only a commissioned military officer,
cadet, or midshipman could commit the offense, because only such
persons could undermine their leadership status in the same
roles. That Conliffe offered a contextual perspective, rather
than an elements-based rule, was reinforced in note 2 stating:
“[We] decline to decide today whether an Article 134, UCMJ,
offense can serve as the underlying criminal offense in a
housebreaking charge, we note that Articles 133 and 134, UCMJ,
contain at least one significant difference.” Id. at 133.
2
  Articles 84, 92, 110, and 115, UCMJ, 10 U.S.C. §§ 884, 892,
910, 915 (2006). Under Article 134, UCMJ, the following
offenses would also not be considered purely military ones:
disloyal statements, jumping from a vessel into the water, and
straggling.

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United States v. Contreras, No. 09-0754/AF


majority seems to prejudge both the jurisdictional issues and

substantive law issues that might arise were a civilian charged

with a violation of the UCMJ.

     The better approach when determining whether an offense is

“purely military” for the purposes of Manual for Courts-Martial,

United States pt. IV, para. 56.c(3) (2005 ed.) (MCM), is that

taken by this Court prior to this case, which entails

examination of the gravamen of the offense, and not just the

elements.    In this regard, civilian practice with reference to

federal and state law is not dispositive, as the Government

seems to suggest, but it may offer relevant context, just as the

absence of any “persons subject to this chapter” other than

military members being charged with an offense, might help to

inform a judgment as to whether an offense was purely military

in nature.

     An “elements test” is superficially appealing for a number

of reasons.   First, it appears to offer certitude, in lieu of

the case-by-case analysis required from contextual analysis.

Second, in some cases the “purely military” nature of the

offense may be easily ascertained from the statutory elements

language.    Likewise, the MCM further limits some offenses under

Article 134, UCMJ, through elements that expressly confine the

offense to military members.    However, the fact that an

“elements test” gets to the right result in some cases


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United States v. Contreras, No. 09-0754/AF


(including this one) does not make it an appropriate substitute

for the contextual analysis heretofore required and applied in

this area of law.

     A quick review of the punitive articles set forth in the

MCM reveals why.    Consider the offense of malingering under

Article 115, UCMJ, 10 U.S.C. § 915 (2006).   Under the UCMJ, the

offense applies to “[a]ny person subject to this chapter.”      The

elements of this offense do not appear to limit the offense to

military members.   It is not until one resorts to contextual

analysis beyond the statutory elements of the offense read with

Article 2(a), UCMJ, that one learns in the explanation section

in the MCM for this offense that we see the limitation to “work,

duty, or service . . . expected of one in the military service.”

MCM, pt. IV, para. 40.c(1).   Thus, notwithstanding the statutory

language and the absence of a limitation in the statutory

elements, one would otherwise consider this a purely military

offense.   Consider also the offense of wrongful cohabitation

under clause 1 or 2 of Article 134, UCMJ, where “the accused and

another person openly and publicly lived together as husband and

wife” when they were not in fact married.    MCM, pt. IV, para.

69.b(1).   Again, the elements do not appear to limit the offense

to military members and under the majority’s paradigm, one would

not otherwise consider this a purely military offense.   However,

in the wake of United States Supreme Court cases about


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United States v. Contreras, No. 09-0754/AF


individual privacy rights, it would seem that no one other than

perhaps a military member would be subject to prosecution for

this offense.

     In short, while the expedience of the “elements-based”

approach may possess some superficial appeal, where we are

implicating the application of military law to civilians, as the

majority does here, we should paint with a fine contextual brush

rather than a broad one of black letter law.   Moreover, if

applied literally the majority’s analysis will result in absurd

results.   More likely, the Court will revert to contextual

analysis, in which case it is not adopting an “elements test” at

all, but rather adding a layer of confusion to the law, by in

fact applying a contextual approach, while purporting to apply a

black letter and predictable rule.    This is suggested by the

opinion’s language stating:   “Other crimes, however, are not so

limited, nor would anyone otherwise consider them to be purely

military offenses . . . .”    Contreras, __ M.J. at __ (11).     In

short, the majority’s analysis is either incorrect –- suggesting

that a slew of purely military offenses apply to civilians –- or

it is confusing –- suggesting that a review of statutory

elements and Article 2, UCMJ, will determine which offenses are

purely military when in fact this Court and practitioners are

really intended to look to the nature of the offense in context

to determine whether it is purely military in nature.


                                  5
