concurrence">REISMEIER, Chief Judge,

joined by Senior Judge MAKSYM (concurring):

I associate myself entirely with the majority opinion. I write separately to explain my perception of what United States v. Fosler, 70 M.J. 225 (C.A.A.F.2011) means, and what it does not.

Failure to state an offense is a legal conclusion; it is not an error. The error is in the drafting of a specification that fails to track the language of the criminal statute at issue. The test to be applied to determine whether the specification was drafted with sufficient error to be noticed depends, at least in part, on whether an accused challenged the specification at trial.

The legal reality is (and long has been) that the timing of a challenge to the legal *628sufficiency of a specification determines the tolerance that courts have in the review of the alleged deficiency. A specification which may be minimally legally acceptable when first challenged on appellate review may be starkly different than a specification that would be minimally legally acceptable when it was first challenged at trial. Despite post-Fosler arguments that all specifications will now look alike, that has never been the law, and for policy reasons supporting the finality of judicial determinations, one would hope never will be the law. It should be no surprise to any criminal law practitioner that our system places great weight on finality. The concerns for finality have caused appellate courts in every American jurisdiction to readily countenance mistakes not challenged at trial, at least when the mistake is not accompanied by some degree of prejudice and lies outside of the limited realm of structural error.

While military jurisprudence has not always made these distinctions clear when discussing allegations of “failure to state an offense,” it is impossible to overlook them when comparing the disposition of the cases. The outcome in United States v. Watkins, 21 M.J. 208 (C.M.A.1986), differed from that in Foslernot because Foslerestablishes a “new” test or “new” application, but because Lance Corporal Fosler challenged his specification at trial, prompting the court to review the specification at issue with a more discerning eye. Watkins, by contrast, involved an accused who pleaded guilty with no challenge to his charge sheet. While both cases presented the court with the same “error”— departure from the text of the underlying statute in the drafting of the specification— the scrutiny employed in the analysis was, quite properly, different. The former was evaluated by a narrow reading adhering closely to the plain text to determine if each element was alleged expressly or by necessary implication; the latter was evaluated to determine whether the specification was “so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.” Watkins, 21 M.J. at 210 (quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir.1965)). Foslerdid not change the law relative to analyzing errors in drafting specifications. Foslermerely applied established law to Article 134 charges, requiring that the elements be alleged just as the elements are alleged for every other UCMJ violation. Foslerin no way altered the standards to be applied when an accused raises a challenge to a specification at trial, or when an appellant raises the challenge for the first time on appeal. If that is what the Court of Appeals for the Armed Forces (CAAF) intended, it is for CAAF, not us, to depart from the precedent of Watkinscited by CAAF in Fosler. CAAF is free to depart from stare decisis. We are not free to depart from CAAF’s precedent.

The difference in how specifications are reviewed relative to how they are challenged stems both from the concern for finality and from the source of the right at issue. The right to a legally sufficient charge is grounded in the right to notice; the right to notice is rooted in the due process guarantees of the Fifth and Sixth Amendments’ “right ... to be informed of the nature and cause of the accusation.” The accused has a right to a specification that states an offense. He has a right to a specification that prompts a court to conclude that the specification — defective, perfect or somewhere in between — legally states an offense. But the answer to the legal question of whether a specification states an offense depends not only on the language of the specification, but also on the particulars of the test to be applied.

As with many legal rights, the test to be applied in the face of a challenge depends on whether the timing of the challenge supports a claim that the right to notice has been compromised. The right to a specification that states an offense does not exist simply to enforce slavish adherence to the well-drafted examples of charging documents contained within the Manual for Courts-Martial. The right to a specification that states an offense exists to ensure that every accused is provided constitutionally sufficient notice. If the timing of the challenge suggests that notice may have been impliedly given, the test applied should recognize the implication.

*629I think it is equally important to note that an accused cannot “waive” a challenge to a constitutionally defective specification. Likewise, I question whether he could truly “forfeit” the right to a constitutionally acceptable specification in a way that is analogous to forfeiting challenges to trial errors. A specification ultimately is either constitutionally infirm or it is not. But while an accused cannot “waive” a challenge to a constitutionally defective specification, a failure to timely challenge a specification will prompt reviewing courts to invest the specification with greater tolerance than would otherwise be acceptable. Again, I return to the point that “failure to state an offense” is not an error. It is a legal conclusion. If a specification fails to state an offense, it is irretrievably defective and must be dismissed.

Herein lies my concern with a plain error test championed by the Government and relied upon in the various circuit courts. The plain error test cannot suggest that a court can accept a failure to state an offense (the purported error), so long as the appellant was not prejudiced. It would be an odd world indeed where an error with jurisdictional consequences could be accepted, or even tested, for a lack of prejudice. The reality is that in those cases applying a plain error analysis, they do not conclude that the indictment failed to state an offense, but that no harm came of it. I will not belabor the point by listing the cases cited by this court in our order specifying the issue for review, nor those referenced by the parties in their excellent briefs submitted in response. I will note, however, that in those cases, although the courts concluded that the indictment did not comport with the technical requirements of pleading, or erred by omitting an explicit reference to an element, the defect did not deprive the appellant of his right to constitutional notice (lack of prejudice). Again, “failure to state an offense” was not the “plain” or “obvious” error the court found. The court found that the indictments stated offenses sufficiently to avoid prejudice to the appellants.

I am equally concerned with the lack of guidance in a “test” which suggests that the sufficiency of a specification will depend on whether it must hew closely to the text or whether it should instead be treated with greater tolerance. The question of whether something “hews closely” or is permitted greater tolerance informs the analysis, but provides no actual legal test under which that analysis may be applied.

I would embrace a plain error test as employed by the circuit courts, noting the review conducted is of whether the appellant suffered prejudice derived from the specification. In this case, there was an error: the specification departed from the text of the statute and failed explicitly to allege the terminal element. Despite the military judge’s justifiable reliance on precedent then under attack at the appellate level, that error must be treated as plain or obvious because the appellant’s case is before us on direct appeal. But that error did not prejudice the appellant, as I can reach the legal conclusion that the specification stated an offense when viewed under the deferential standard articulated in Watkins, and relying on the reasons stated in the majority opinion.

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