CCA 2011-07. On consideration of the certificate of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2006), and Appellee’s motion to dismiss, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed, and the motion to dismiss is denied.
A summary affirmance is consistent with the majority’s position in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), and in light of Fosler, correctly resulted in the granting of Appellee’s petition for extraordinary relief on January 3, 2012. However, because I adhere to my position in Fosler, I concur in denying the motion to dismiss, but dissent with regard to the Fosler issues for the reasons stated in my dissenting opinion in Fosler. 70 M.J. 225, 240-47 (C.A.A.F. 2011).
BAKER, Chief Judge (concurring in part, dissenting in part):