(concurring in the result):
64. I have previously stated my view as to the resolution of this government appeal in a separate opinion attached to our prior order in this case. The majority’s attempt to further use this unadjudicated case as a vehicle to simplify the law of multiplicity is self-defeating on its face.
65. Nevertheless, Judge Cox’s effort to rewrite the law of multiplicity in dicta deserves some response. I continue to adhere to a “statutory elements” approach vis-a-vis a “pleadings elements” approach when determining necessarily included offenses at courts-martial. United States v. Schoolfield, 40 MJ 132 (CMA 1994); United States v. Teters, 37 MJ 370 (CMA 1993), cert, denied; — U.S. -, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994); see United States v. Foster, 40 MJ 140,148 (CMA 1994) (Sullivan, C.J., concurring); see also United States v. Abeyta, 27 F.3d 470, 474 n. 7 (10th Cir.1994); United States v. Allen, 13 F.3d 105, 109 n. 4 (4th Cir.1993); see generally United States v. Wolfswinkel, 44 F.3d 782, 785 (9th Cir.1995). I also conclude that paragraph 2, Part TV, Manual for Courts-Martial, United States, 1984,* is consistent with a strict statutory elements approach or, if inconsistent, is not determinative of the law of necessarily included offenses at courts-martial. See Art. 79, Uniform Code of Military Justice, 10 USC § 879.
66. Finally, Judge Cox’s resurrection of United States v. Baker, 14 MJ 361 (CMA 1983), is curious and, perhaps, an interesting exercise in semantics. In United States v. Teters, supra at 378, he stated, “With apologies to the great bard, I join the Court in burying United States v. Baker, 14 MJ 361 (CMA 1983), and its progeny, but not in praising or justifying them.” Today, he digs up Baker and unsuccessfully attempts CPR (cardiopulmonary resuscitation).
See ¶ 18 n. 3.