(concurring in the result).
The elements of an offense under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, as defined in Article 1116(2), U.S. Navy Regulations, are necessarily included in the elements of an offense under Article 134, UCMJ, 10 U.S.C. § 934, and 18 U.S.C. § 793(d). The conviction of the former offense (Charge VI and its specification) should be set aside. Ball v. United States, — U.S. ---, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
The elements of an offense under Article 134, as defined in 50 U.S.C. § 783(b), are not necessarily included in the elements of an offense under Article 134 and 18 U.S.C. § 793(d), as each provision requires proof of a fact that the other does not. Both of these findings of guilty may stand. Id. Whether one accepts the “fairly-embraced” theory of lesser-included offenses1 or not,2 there is no basis for its application with respect to these two offenses.
. See United States v. Baker, 14 M.J. 361 (C.M.A.1983), and United States v. McVey, 4 U.S.C.M.A. 167, 15 C.M.R. 167 (1954).
. See United States v. Zupancic, 18 M.J. 387, 391 (C.M.A.1984) (Cook, J., concurring in part and dissenting in part).