(concurring):
I concur with the majority opinion, however I write separately to highlight the challenges presented by prosecution of child pornography offenses under Article 134 clauses 1 or 2, and reiterate the mystification expressed by Judge Stucky in his dissent in Medina as to the continued use of clause 3 as a cogent theory of liability.1
Even applying the “elements test” as set forth in Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), I cannot imagine a scenario in which an offense with an additional element, which clauses 1 and 2 will invariably have, would be considered a lesser included offense to a clause 3 offense.2 Cf. United States v. Medina, 66 M.J. 21, 24-25 (C.A.A.F.2008)(citing United States v. Teters, 37 M.J. 370, 376 (C.M.A.1993)). My conclusion is supported by Schmuck’s holding that an offense cannot be considered to be a lesser included offense “where the lesser offense requires an ele*784ment not required for the greater offense.” Schmuck, 489 U.S. at 716,109 S.Ct. 1443. In this respect, I would state to military justice practitioners, with greater certitude than did the court in Medina, that clauses 1 and 2 are objectively not lesser included offenses of clause 3.
In this case, the appellant was charged with knowingly receiving and possessing child pornography in violation of 18 U.S.C. § 2252A, charged under clause 3 of Article 134, UCMJ. The ¡elements of 18 U.S.C. § 2252A do not include the requirement that the appellant’s conduct have been either “prejudicial to good order and discipline” or “service discrediting.” To refer to clauses 1 and 2 as lesser included offenses of the charged offense in this case would be to require an element not required for the greater offense. In other words, when the appellant was pleading guilty to clauses 1 and 2 of Article 134, UCMJ, he was not pleading guilty to a lesser included offense of the charged offense as the record reflects he, his defense counsel, trial counsel, and the military judge thought. Record at 13, 53, 76. Instead, the appellant was pleading guilty to a distinct offense that did not appear on the charge sheet, and could not be implied therein.
While clauses 1 and 2 will, in my opinion, universally fail to satisfy the Medina test for lesser included offenses when the greater offense is clause 3, the plea in this case was indeed provident because the appellant was on fair notice as to the offense to which he was pleading guilty, and it is clear his plea was knowing and voluntary.
. "It is a mystery to me why, after this Court's ten-year history of invalidating convictions for child pornography offenses under clause 3, and of upholding convictions for such offenses under clause 2, we continue to see cases charged under clause 3.” Medina, 66 M.J. at 29 n. 1 (Stucky, J., dissenting).
. "Under this test, one offense is not 'necessarily included’ in another unless the elements of the lesser offense are a subset of the elements of the charged offense.” Schmuck, 489 U.S. at 716, 109 S.Ct. 1443.