(concurring in the result):
I concur in the result.
Since I believe that the question involved in the ruling of the law officer *299on the motion to dismiss is one of law, as distinguished from a mixed question of law and fact or one of fact alone (see my separate opinion in United States v Boehm, 17 USCMA 530, 38 CMR 328 (1968)),1 which ruling, in the event of conviction, is reviewable on appeal to this Court, I join my brothers in denying the accused’s motion for a writ of prohibition. This case is distinguishable from Fleiner v Koch, 19 USCMA 630 (1969), where we granted a similar petition and directed that the petitioner not be required to stand trial, on the ground that the offenses originally dismissed by the military judge, but reinstated at the direction of the convening authority, were outside the jurisdiction of the court-martial in light of the Supreme Court’s decision in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969). In this case, the petitioner, in the initial proceedings before the military judge, indicated that the evidence of the acts charged in the specifications under consideration covered the same material identified in those specifications not affected by the judge’s ruling. For this reason, I agree there is little risk of irreparable harm to the petitioner if we leave him to the regular course of appeal in the event of conviction.
As I stated in my dissent in Boehm, I do not believe that Article 62 (a), Uniform Code of Military Justice, 10 USC § 862, compels the military judge to reverse his ruling when the convening authority returns the case for reconsideration if the ruling is based on a mixed question of fact and law or one of fact alone.