(concurring in part and in the result):
I agree with the majority that, assuming any error as appellant complains, it was harmless under all the circumstances of this case. See Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a). Accordingly, I join in the disposition ordered by the majority and in that portion of the majority’s opinion that develops the conclusion that appellant was not prejudiced.
I expressly do not join, however, in that portion of the majority opinion which suggests the absence of an abuse of discretion “in admitting this uncharged-misconduct evidence.” 35 MJ at 268. I have two serious reservations about that part of the opinion.
First, Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1984, expressly precludes admission of “[ejvidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show that the person acted in conformity therewith.” The reasoning in the majority opinion leading to its finding of no error seems to violate this principle—witness such language as, “appellant’s sexual de*270sires for his nephews in 1985 or 1986 established a persistent state of mind or sexual desire for the male adolescents in his family which was consistent with the stepson’s testimony of repeated offenses.” 35 MJ at 268.
This sentence is logical if it was a given that the charged acts occurred and the key dispute was identity of the perpetrator. But in the context where the only real contest for the factfinders was whether the acts occurred at all, this evidence does only one thing: It argues that the accused acted in a certain way before, so it can be presumed that he acted in conformity again. Even the military judge, in the quoted portion of his ruling in the majority opinion, 35 MJ at 267, acknowledges such a view of the evidence. Mil.R.Evid. 404(b) disallows such propensity evidence. See generally Estelle v. McGuire, — U.S. -,-- -, 112 S.Ct. 475, 483-84,116 L.Ed.2d 385 (1991).
Second, if it be argued that, regardless of the defense theory of the case, the prosecution was required to prove all the elements of the charged and lesser-included offenses and that this evidence permissibly helped do so, see Estelle v. McGuire, supra — U.S. at ——, 112 S.Ct. at 483, certainly the response is that, notwithstanding, the theory of the case surely enters into the formula under Mil.R.Evid. 403. See United States v. Warren, 6 USCMA 419, 423, 20 CMR 135, 139 (1955). Evidence which is probative only of an element that both sides agree is not disputed and which, at the same time, is highly inflammatory and, thus, unfairly prejudicial, should be excluded. That is what MiLR.Evid. 403 is all about.