(concurring):
I concur in the majority opinion but write separately to suggest an alternative approach to address the significant amount of time and effort devoted to multiplicity litigation, which frequently produce results that do not have a significant impact on the interests of either an appellant or the Government, regardless of who prevails on appeal.
I. Background
Multiplicity litigation has been marked by instability in doctrine and ad hoc resolution of cases, reflecting military justice considerations that increase the potential for trials involving multiple charges. The concept of multiplicity involves two separate concerns: first, the constitutional and statutory prohibitions against double jeopardy; and second, the impact of multiple charges growing out of the same transaction or series of transactions on the exercise of discretion with respect to charging and sentencing.
A Constitutional Concerns
The Fifth Amendment to the Constitution provides that no person shall “be subject, for the same offense, to be twice put in jeopardy of life or limb,” a doctrine that also is reflected in Article 44, Uniform Code of Military Justice, 10 USC § 844. See also RCM 907(b)(2)(C), Manual for Courts-Martial, United States (1995 ed.). Double jeopardy not only prohibits successive trials for the same offense; it also prohibits separate convictions for the same offense at the same trial. Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); United States v. Teters, 37 MJ 370, 373 (CMA 1993).
The double-jeopardy aspect of multiplicity has spawned extensive litigation concerning whether two nominally separate offenses are, in fact, the same offense. Over the years, the Manual for Courts-Martial, this Court, and other courts have developed, revised, rejected, and regenerated a variety of tests for multiplicity, as well as for whether a claim of multiplicity has been waived by failure to make a timely motion at trial.
In this regard, commentators have expressed significant frustration at both the volume of multiplicity litigation and the inability of the courts to develop stable and consistent tests for appellate review. See, e.g., Barto, Alexander the Great, the Gordian Knot, and the Problem of Multiplicity in the Military Justice System, 152 Mil. L.Rev. 1 (Spring 1996); Young, Multiplicity and Lesser-Included Offenses, 39 AF. L.Rev. 159 (1996); Herrington, Multiplicity in the Military, 134 Mil. L.Rev. 45 (Fall 1991). This has led to recommendations for legislative and regulatory action, as well as to suggestions for new judicial approaches. See, e.g., Barto, supra at 28-30 (recommending that the President establish a “Table of Equivalent Offenses”); see also United States v. Turner, 28 MJ 556 (CGCMR 1989) (urging Code Committee and Joint-Service Committee on Military Justice to examine multiplicity).
B. Tests for Evaluating Claims of Multiplicity
Very early, the Manual provided a test for multiplicity that rings familiar today: “The offenses are separate if each offense requires proof of an element not required to prove the other.” Para. 76a (8), Manual for Courts-*200Martial, United States, 1951. This language was consistent with the decision of the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,182, 76 L.Ed. 306, 309 (1932), which adopted a statutory-elements test1 for multiplicity. The 1969 version of the Manual did not carry this elements test forward, however, and permitted findings of guilty “without regard to whether the offenses are separate.” See para. 746 (4), Manual for Courts-Martial, United States, 1969 (Revised edition).
The major revision of the Manual for Courts-Martial in 1984 provided broad standards for determining multiplicity for findings. Multiplicious specifications were defined in terms of alleging “the same offense,” “necessarily included in the other,” and describing “substantially the same misconduct in two different ways.” RCM 907(b)(3)(B), Discussion, Manual for Courts-Martial, United States, 1984. That guidance remains unchanged in the current edition of the Manual. See RCM 907(b)(3)(B), Discussion, Manual, supra (1995 ed.).
Military case law also has adopted a variety of different tests over the years. In United States v. Baker, 14 MJ 361, 366-70 (1983), this Court reviewed our earlier treatment of this issue and set out a three-step approach to the multiplicity analysis: (1) Was there an initial unreasonable multiplication of charges? (2) Was it proper to find appellant guilty of two offenses? (3) Could appellant be separately punished for each offense? A reading of this Court’s relevant opinions over the 10 years following Baker, however, indicates a struggle in the application of that approach.
In United States v. Teters, supra, we sought uniformity and clarity by looking to civilian precedent. Concluding that “the time ha[d] passed for a separate military-law doctrine,” 37 MJ at 376, the Court cited Blockburger and announced that the “test is to be applied to the elements of the statutes violated and not to the pleadings or proof of these offenses.” Id. at 377. We stated that once the Blockburger “separate elements test” has been satisfied, separate convictions and punishment are authorized. Id. at 377-78. Only 2 years later, however, the multiplicity analysis was expanded beyond Block-burger. In United States v. Weymouth, 43 MJ 329 (1995), this Court recognized that the historical significance of pleadings, the policy to try all known charges in a single proceeding, and the incentive to multiply charges because of the military sentencing scheme supported an “elements/pleadings” approach to military multiplicity issues, in deviation from civilian practice.
C. Tests Concerning Waiver of Multiplicity Claim
In addition to lack of stability in the tests for identifying multiplicity, we also have employed varying standards for determining whether the issue of multiplicity has been waived. See RCM 905(e).
In a non-multiplicity context involving the issue of double jeopardy, the Court early on recognized the “general rule” that, absent “unusual circumstances,” “a claim of former jeopardy must be raised before the conclusion of the trial or it is waived.” United States v. Schilling, 7 USCMA 482, 483, 22 CMR 272, 273 (1957). In a wave of post-Baker cases, however, the Court granted relief without even mentioning whether trial motions had been made — and, consequently, without explicit reference to plain error. The Court clarified its treatment of those eases in United States v. Holt, 16 MJ 393, 394 (1983), in which the Court observed:
In cases in which application of the Baker standard has compelled a conclusion that findings were multiplicious, we have viewed as plain error the failure of the trial or intermediate appellate courts to dismiss the included offenses. In such instances, we have not hesitated to grant relief, even though the defense had not complained of multipliciousness at trial or on appeal.
Waiver absent plain error continues to be the approach today. See United States v. Carroll, 43 MJ 487, 488 (1996). In contrast to the pre-Holt cases, however, the Court now is open in its search for plain error. Accord *201United States v. Lloyd, 46 MJ 19 (1997). This rule is consistent with federal civilian practice. See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)(double-jeopardy objections may be waived or forfeited passively by failure to object).
II. Multiplicity Considerations Unique to the Military Justice System,
I recognize this Court’s obligation to articulate clear standards for reviewing issues involving multiplicity. I have no illusion, however, that a significant reduction in the volume of multiplicity litigation can be produced solely as a result of enhanced clarity. Multiplicity analysis involves an ad hoc, case-by-case assessment of factual circumstances and the relationship of those facts to the elements of two or more court-martial offenses. Given the wide variety of charges that are available to punish similar misconduct under the Code, ho readily available formula has been developed to date that would simplify multiplicity analysis.
Although the issue of multiplicity can arise in civilian trials,2 the volume and complexity of multiplicity litigation in the military setting appears to be much greater than in the civilian community. The differences may well reflect the unique functions of a military justice proceeding. A civilian criminal trial is intended primarily to determine guilt or innocence with respect to a particular incident or related series of incidents and, in the event of a guilty finding, to determine whether the person should be confined or fined. Although a military trial has the same goals, it also is concerned with the efficient maintenance of good order and discipline.
As a result, it is a common military practice to try all known offenses in the same proceeding, even if the offenses are substantially unrelated. See Weymouth, 43 MJ at 335-36; see also RCM 307(c)(4). In addition to the traditional criminal law punishments of confinement and fines, a military sentencing proceeding is equally concerned with punishments that can affect an individual’s military status — e.g., a discharge, a reduction in rank, or a forfeiture of pay. Given the impetus to maintain good order and discipline, to try all known offenses at once, and to relate those offenses to the individual accused’s military status, there is a much greater likelihood of multiple charges, even arising from a single incident, in military trials than in civilian proceedings.
The Discussion accompanying RCM 307(c)(4) contains the following admonition:
What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person. See RCM 906(b)(12) and 1003(c)(1)(C). For example, a person should not be charged with both failure to report for a routine scheduled duty, such as reveille, and with absence without leave if the failure to report occurred during the period for which the accused is charged with absence without leave. There are times, however, when sufficient doubt as to the facts or the law exists to warrant making one transaction the basis for charging two or more offenses. In no case should both an offense and a lesser included offense thereof be separately charged.
See also RCM 601(e)(2) concerning referral of several offenses.
The Discussion, however, does not establish a legally binding limitation. Drafters’ Analysis, Manual, supra at A21-3. As a result, even when “[w]hat is substantially one transaction” is transformed into multiple charges that arguably reflect “an unreasonable multiplication of charges,” an accused is not guaranteed relief at trial absent a demonstration that the charges are, in fact, multiplicious as a matter of law.
Even when charges apparently are multi-plicious, the military judge has discretion to allow the charges to stand during trial — at least pending a determination of guilt or *202innocence — to meet exigencies of proof. United States v. Moms, 18 MJ 450 (CMA 1984); United States v. Stegall, 6 MJ 176 (CMA 1979); United States v. Fortney, 12 MJ 987 (AFCMR 1982); United States v. Croom, 1 MJ 635 (ACMR 1975); see also RCM 907(b)(3)(B). Ultimately, if findings of guilty are entered on both charges, the military judge should dismiss one of the charges. United States v. Zupancic, 18 MJ 387 (CMA 1984). During sentencing, where a charge is not clearly multiplicious, the military judge often will endeavor to ameliorate what appears to be an unreasonable multiplication of charges by determining that the charges should be considered multiplicious for sentencing. United States v. Traxler, 39 MJ 476, 480 (CMA 1994); see also RCM 1003(c)(1)(C).
As a result, the same word — “multipli-cious” — has been used to describe two different matters: (1) a non-discretionary legal limit on offenses during findings; and (2) a discretionary decision by the military judge to combine offenses during sentencing. In that regard, the President could help reduce the potential for confusion by using a term other than “multiplicious” to describe offenses combined by a military judge as a matter of discretion during sentencing. See Art. 36, UCMJ, 10 USC § 836.
III. A Proposed Approach to Appellate Review Addressing the Interests of the Parties
Appellate consideration of multiplicity cases typically involves one of two circumstances:
(1) review of a determination by the military judge that the charges were not mul-tiplicious for either findings or sentence; or
(2) review of a determination by the military judge that the multiple charges are not multiplicious for findings in circumstances where the military judge decides to treat the charges as a single offense during sentencing.
In the second circumstance, an accused on appeal typically will seek dismissal of one of the charges. When this Court has responded by ordering dismissal of a charge, we implicitly have recognized that prejudice from multiplicious findings extends to the finding, not just to the sentence. See Holt, 16 MJ at 393. More recently, we expressly have focused on the constitutional and statutory double-jeopardy rights of an accused to not carry two convictions for what is essentially a single offense. See United States v. Harwood, 46 MJ 26, 28-29 (1997), citing Rutledge v. United States, 517 U.S. 860, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), and Ball, 470 U.S. at 856,105 S.Ct. at 1668.
In view of the responsibility of appellate defense counsel to review the record of trial thoroughly, to raise all issues that reasonably could lead to relief for the client, and to call matters to the attention of the appellate courts pursuant to United States v. Groste-fon, 12 MJ 431 (CMA 1982), there is substantial appellate litigation concerning findings multiplicity, even though the practical effect of such litigation may be minimal in many cases. Even when an appellant prevails, the sentence usually is not changed, and that appellant remains convicted of a serious charge. The only effect is that a lesser charge is removed from his or her record. Accordingly, while it legally may be compelled, there is little reason to believe that, from a practical perspective, removal of the lesser charge will have a significant impact on an appellant’s future prospects or endeavors.
The Government has been reluctant either to concede error or to take other steps that would moot multiplicity issues. The primary concern appears to be that dismissal of a less-serious charge could put the Government’s interests at risk if, on appeal, the more-serious charge is dismissed. I note, however, that if a rehearing on the greater offense is authorized, double jeopardy does not bar retrial on either the greater or the lesser charge where an appellant is successful on appeal. United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). The Government’s interest is not a double-jeopardy concern but a practical concern. The Government is reluctant to agree to dismissal of a lesser charge, run the risk of losing the greater offense during fur*203ther appeal, and then be put to the time and expense of a new trial when the conviction of the lesser offense was obtained lawfully.
In my view, this problem could be remedied if appellate authorities (ie., the Courts of Criminal Appeals and this Court) were to enter a “conditional dismissal” of a colorably multiplicious charge under which the less-serious charge would be dismissed without prejudice to: (1) considering the facts surrounding the lesser offense as matters in aggravation with respect to the sentence; and (2) reinstatement of the dismissed charge before the case becomes final should the more-serious charge be dismissed. There is the potential to substantially reduce appellate litigation in this area, without prejudice to either party, if appellate authorities — in the interest of judicial economy— were to dismiss conditionally lesser charges in any case involving a colorable allegation of multiplicity and no perceptible impact on the sentence.
IV. Application of the Proposal to the Present Case
A. The Competing Views of the Parties
The case before us illustrates the potential benefits of such an approach. The issues at trial revolved around different versions of events between appellant and the victim regarding the victim’s consent. The Government presented evidence that appellant forcibly dragged the victim down the hallway of his apartment from his living room to his bedroom and then raped her. Appellant was charged with two separate offenses: assault with intent to commit rape and rape.
During his closing argument on the merits, trial counsel acknowledged that “both charges ar[o]se out of the same incident, the same conduct that occurred on that night____” Although defense counsel did not raise the issue of multiplicity for either findings or sentence, the military judge sua sponte commented prior to the sentencing arguments of counsel:
By the way, I considered the two offenses multiplicious for sentencing purposes without elaborating the many theories that that in my opinion is appropriate. I’ll consider the two offenses but one offense for sentencing purposes. Proceed please.
Neither counsel offered comment or objection to this ruling.
In support of his appellate contention that the findings are multiplicious, appellant points out that the President has indicated in the Manual that assault with intent to commit rape — an offense set out by the President under the General Article of the Uniform Code, Article 134, 10 USC § 934 — is a lesser-included offense of rape. See para. 45d(l)(b), Part IV, Manual, supra (1995 ed.). Moreover, in light of this Court’s precedent that assault with intent to commit rape and attempted rape are multiplicious, at least where the facts demonstrate a continuous course of conduct, see United States v. Gibson, 11 MJ 435 (CMA 1981), appellant argues that it would be illogical to hold that assault with intent to commit rape is not a lesser-included offense of the completed offense of rape. Given this relationship, he contends that the military judge’s failure to treat the charges as one for findings was plain error because the offenses were multiplicious for findings. See Weymouth, 43 MJ at 329; United States v. Schoolfield, 40 MJ 132 (CMA 1994).
The Government, on the other hand, contends that the offenses are not multiplicious. According to the Government, the assault is based upon appellant’s dragging his victim down the hallway, throwing her on the bed, and pinning her down, which makes the assault offense complete at that time. The rape was based upon the facts that occurred thereafter. See United States v. Edwards, 35 MJ 351 (CMA 1992). The Government argues that, under these circumstances, where the assault and the rape are based on different facts, they are neither lesser-included nor multiplicious. See United States v. Neblock, 45 MJ 191 (1996). Alternatively, even if not separate, the Government takes the position that failure to treat them as a single offense for findings was not clear and obvious error, see United States v. Fisher, 21 MJ 327 (CMA 1986), so appellant’s failure to raise the issue at trial forfeited his appellate complaint. See RCM 905(e) and 907(b)(3)(B); Carroll, 43 MJ at 487.
*204This case well illustrates the difficulty of achieving any level of comfort and confidence in the task of formulating and articulating principles of multiplicity that will lead unerringly to rational results in particular cases. The Government points to this Court’s recent decision in United States v. Oatney, 45 MJ 185, 188 (1996), in which a majority offered the following view:
Moreover, the pragmatic or realistic comparison approach of [United States v.] Foster l, 40 MJ 140 (CMA 1994),] still requires, at the very least, a conclusion that the greater offense could not possibly be committed without committing the lesser offense. See United States v. Schoolfield, 40 MJ at 137 (rape and indecent acts); United States v. Foster, 40 MJ at 146 (sodomy and indecent acts).
On the one hand, there are likely to be few circumstances in which a person , could commit rape without, in the process, assaulting the person with intent to rape,- given the essence of an assault being an offensive touching. On the other hand, the assault with intent to commit rape that is charged need not necessarily be the offensive physical touching that is inherent in the course of accomplishing the rape. See, e.g., United States v. Hicks, 24 MJ 3 (CMA 1987); United States v. Watkins, 21 MJ 224 (CMA 1986).
The Government argues that the assault was complete when appellant dragged his victim down the hall, threw her on the bed, and pinned her hands down. Under the Government’s theory, throwing the victim onto the bed and pinning her hands down, immediately prior to removing her clothes and raping her, would constitute an assault that is separate from the rape. Theoretically, each of the acts — dragging her down the hall, throwing her onto the bed, and pinning her hands down — could be viewed as a separate assault with intent to commit rape. In that regard, there could have been far more than two charges in this case, with little practical end to the possibilities for charging multiple offenses.
B. Judicial Considerations
Military judges usually have little difficulty arriving at sensible conclusions as to whether two or more findings should be treated as one for purposes of sentencing. In the case before us, for example, the military judge treated these offenses as multiplicious for sentencing while declining to “elaborate on] the many theories” that, in his opinion, made such treatment “appropriate.” Yet, if two convictions truly do grow out of “the same conduct, even if sentenced under only one, ... the second conviction, even if it results in no greater sentence, is an impermissible punishment.” Ball, 470 U.S. at 861, 865, 105 S.Ct. at 1671,1673.
Because Ball (1985) does not permit us to ignore the findings, even when-the offenses have been treated as multiplicious for sentencing, the interests of appellate judicial economy suggest the need to develop a more practical approach to claims of multiplicious findings. Accordingly, at least where: (1) the case involves a purported lesser offense, (2) there is a colorable basis for the claim of findings’ multiplicity, and (3) the claim, if granted, would not result in sentence relief, appellate courts should order a “conditional dismissal” in the interests of judicial economy. The dismissal would become effective when direct review becomes final in the manner described in Article 71(c), UCMJ, 10 USC § 871(c). Such a disposition would be appropriate, for example, in cases either where the military judge has treated the offenses in issue as multiplicious for sentencing or where the sentence would be affirmed under application of the principles articulated in United States v. Sales, 22 MJ 305, 307-08 (CMA 1986), and United States v. Suzuki, 20 MJ 248, 249 (CMA 1985). The procedure described above would protect the interests of an appellant with respect to former-jeopardy concerns and would protect the interests of the Government in the event that the remaining charge is dismissed during further review.
In my view, the power to order such a conditional dismissal is well within the inherent authority of appellate courts. In order to minimize appellate litigation, however, it would be preferable for the President expressly to authorize this procedure in the Manual for Courts-Martial. See Art. 36. In *205addition, as noted in Part II, the President could enhance the clarity of the law in this area by using a term other than “multipli-cious” (e.g., consolidation) to describe offenses that are combined by a military judge as a matter of discretion during sentencing.
. See 43 MJ 65, 67 n. 2 (1995).
. See Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); see also United States v. Teters, 37 MJ 370, 373 n. 1 (1993).