(concurring):
I concur in the result. The convening authority initially selected six men and three women to sit as the voting members of the appellant’s court-martial. Prior to trial, one of the men was excused. After challenges, four men and two women heard the case. The appellant was not a woman nor a member of another cognizable group.
In United States v. Ruiz, 49 M.J. 340, 344 n. 2 (1998), our superior court wrote, as follows:
Virtually all of our cases applying Bat-son and its progeny to the military system involve fact patterns wherein the challenged court member is either the only minority member or is one of a very small percentage of minority members____ [Tjhere may be circumstances where the exercise of a single peremptory challenge, in the context of the composition of a particular court-martial panel, may not be enough even to raise the spectre of improper motive.
On these facts, I would find the question of purposeful discrimination or improper motive was not raised, and the use of the per se rale established for racial discrimination in United States v. Moore, 28 M.J. 366 (C.M.A.1989), and extended to gender discrimination in Witham, inappropriate. Instead, because neither the accused nor the victim (in reality the Air Force as a community was the victim of the false statement) was a member of the cognizable group challenged, and members from that group remained on the court panel, I would require the accused to make the prima facie showing required by the Supreme Court in Batson.