Latimer, Judge
(concurring):I concur.
I have sought to fix a different standard for applying footnote 5 to the Table of Maximum Punishments but a majority of the Court have settled the rule by adopting the gravamen test. Applying that rule, the result reached is correct.
I suggest there might be one method of avoiding some of the difficulties the services are encountering in applying the footnote. It appears to me that, under our concept of lesser included offenses failure to repair might, in many instances, be a lesser included offense of failure to obey. If so, and appropriate instructions are given, a factual determination by members of the court-martial may eliminate the necessity of considering the applicability of the footnote.