concurring in part and dissenting in part.
That portion of the majority opinion concerning the assaults in this case has at least
four flaws. The first and perhaps the most serious flaw in the majority approach is that it leads to bizarre results. For example, if an accused approached his victim with an unloaded pistol concealed in his pocket, he could subject himself to a felony conviction and the maximum punishment of a bad-conduct discharge and confinement for one year for carrying a concealed dangerous weapon.1 If an accused approached the same victim with an unloaded pistol and pointed it as if to fire, the result under the majority approach would be a conviction for simple assault with a maximum punishment of confinement for only three months and no punitive discharge.
Even though logic and experience indicate that brandishing a weapon as if to shoot is more serious and blameworthy criminal conduct than carrying it concealed, the majority approach treats the former as a minor offense.2 Every soldier learns from basic training onward to treat firearms as dangerous weapons whether they are loaded or not. If the majority view is correct, however, an unloaded rifle or pistol is “dangerous” for virtually all purposes in the military except when it is proffered as a firearm during an offer-battery type assault!
A second flaw is the failure to reconcile the majority holding with the plain language of Article 128(b), UCMJ. The statutory prohibition concerning assault with a “dangerous weapon or other means or force likely to produce death or grievous bodily harm” is not limited by its plain meaning to those loaded firearms immediately and directly capable of inflicting such harm. In addition, there is no indication in the legislative history that only a loaded weapon can be a “dan*693gerous weapon or other means or force likely to produce death or grievous bodily harm.”3
A third and closely related flaw in the majority approach is that it perpetuates the misconception in paragraph 54c(4)(a)(ii) of the Manual that an unloaded pistol, when brandished as a firearm, can never be the “dangerous weapon or other means or force” used in a manner likely to produce death or grievous bodily harm in violation of Article 128(b)(1), UCMJ.4 This dogmatic approach ignores the facts and circumstances surrounding the use of the pistol.
While professing to follow United States v. Smith, 4 U.S.C.M.A. 41, 15 C.M.R. 41 (1954),5 the majority opinion fails to apply the rationale of that opinion to the case at bar. The five-inch knife used by the assailant in Smith never came closer than nine yards to the victim. In a sense, the knife was “unloaded” as the assailant never came within immediate thrusting distance—he merely had the potential of slashing the victim. The Court of Military Appeals in Smith, however, did not focus solely on the characteristics of the knife or its maximum effective range. Instead, the court examined all the circumstances to conclude that the assailant had the actual ability to inflict death or grievous bodily harm before the victim could escape.
In the case at bar, a careful review of the stipulation of fact (see Appendix) indicates that the appellant had three loaded magazines and a box of ammunition within arm’s reach as he pointed his weapon at the first victim. The majority concludes that an aggravated assault was not committed because none of those bullets were in the pistol. The majority focuses too much on the implement and not enough on the actor and the circumstances surrounding the manner in which the implement was used.
In redefining “dangerous weapon” the majority approach creates a new “inherent present capability” element that is different from the “present ability” standard previously utilized by this court. In United States v. Cato, 17 M.J. 1108 (A.C.M.R.1984), pet. denied, 19 M.J. 119 (C.M.A.1984), this court affirmed a guilty plea to aggravated assault even though the round of ammunition was jammed backwards into the breach of the weapon. In that case, the rifle could not have been fired until the jammed round of ammunition was manipulated by hand and inserted correctly. In United States v. Lamp, 44 C.M.R. 504 (A.C.M.R.1971), we affirmed an aggravated assault conviction when the loaded magazine was inserted into the carbine but no round was in the chamber. Query—how are those situations materially different from having ammunition or magazines within easy reach? Is not the issue under the Smith analysis whether the assailant had the present ability to inflict death or grievous bodily harm during the offer-battery assaults even though the pistol was “unloaded”?
A fourth flaw in the majority approach is their failure to analyze this case in accordance with the standard of review for guilty *694pleas. In this case the providence inquiry contained the appellant’s admission of each element and his revelation of factual circumstances that objectively supported his plea. See United States v. Anzalone, 41 M.J. 142 (C.M.A.1994); United States v. Davenport, 9 M.J. 364 (C.M.A.1980).
At trial the appellant initially entered guilty pleas to two specifications that each alleged an offer-type assault upon a person “with a dangerous weapon, to wit: a loaded firearm.” The government then moved to amend the specifications to allege that the assaults occurred “with a dangerous weapon, to wit: a firearm.” The military judge permitted the specifications to be amended, and the appellant reentered pleas of guilty. The military judge then stated, “I don’t think this alleges an aggravated assault when you take out the loaded firearm aspect of the case.” Both the trial and defense counsel, however, cited Sullivan to support their understanding that a firearm may be a dangerous weapon even though it is unloaded.
During the colloquy with the appellant, the military judge emphasized the point as follows:
MJ: Now, is a .9mm Berretta the sort of weapon which is likely to cause grievous bodily harm?
ACC: Yes, sir, it is.
MJ: Do you remember how I defined the term?
ACC: Yes, sir.
MJ: Even though this was an unloaded weapon do you understand that it is still something, or you believe that it is something that might cause grievous bodily harm?
ACC: Yes, sir.
MJ: At least when used in the manner that you were using it?
ACC: Yes, sir.
It is clear from the record that the appellant and his counsel knew and understood that the guilty plea to aggravated assault was based on an assault by offer involving an apparently loaded pistol under circumstances where the pistol could have been loaded. Thus, the plea inquiry did not contain “evidence in substantial conflict with” his plea of guilty in connection with his intent so as to warrant setting aside his plea. See United States v. Stewart, 29 M.J. 92, 93 (C.M.A.1989) (citing United States v. Hebert, 1 M.J. 84, 86 (C.M.A.1975)).
All the parties at the court-martial applied the binding precedents of our court, including United States v. Sullivan, 36 M.J. 574 (A.C.M.R.1992), at the time the plea was entered. The majority opinion finds the plea improvident because the parties at trial focused on the Sullivan approach to the issue. Even if that reliance was misplaced, however, the appellant supplied facts during the colloquy and in the stipulation that would be adequate to uphold the plea under the preSullivan standards. The majority seems to have forgotten that a guilty plea supported by a pretrial agreement may be upheld even though the parties at trial discuss the wrong theory of law or even the wrong Article of the UCMJ. See United States v. Hubbard, 28 M.J. 203 (C.M.A.1989); United States v. Epps, 25 M.J. 319 (C.M.A.1987); United States v. Felty, 12 M.J. 438 (C.M.A.1982).
Rather than perpetuating the flaws of the majority opinion, a better approach would be to interpret Article 128(b), UCMJ, in accordance with the reasoning of a unanimous Supreme Court in McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986). In that case the Court concluded that an unloaded gun always is a “dangerous weapon.”
[A] gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue.
Id. at 17-18, 106 S.Ct. at 1677 (emphasis added). Updating the considerations enunciated by the Court of Military Appeals in United States v. Vigil, 3 U.S.C.M.A. 474, 13 C.M.R. 30 (1953), in accordance with the reasoning of the Supreme Court in *695McLaughlin results in the following analysis for an offer-battery assault committed with an apparently “dangerous weapon”:
a. What is the typical and characteristic nature of the weapon used, including the use for which it is manufactured and sold?
b. Was the weapon used in a manner likely to produce death or grievous bodily harm either directly or through the immediate danger of a violent response or hasty retreat?
Utilizing this standard, I would find the appellant’s plea provident as he intended that the victim perceive the imminent infliction of death or grievous bodily harm from the pistol. I would further find that his actions in pointing the Berretta at the mid-section of his victims and threatening one of them, “I oughta shoot you bitch,” created the very real possibility of a violent intervention or response or hasty evasion likely to produce death or grievous bodily harm. Thus, this court should hold that the appellant’s actions were aggravated assaults within the meaning of Article 128, UCMJ, for offer-battery assault, whether or not the pistol was loaded.
. Paragraph 112c(2) of the Manual, in defining a "dangerous weapon” for purposes of the offense of carrying a concealed weapon, states:
[A] weapon is dangerous if it was specifically designed for the purpose of doing grievous bodily harm, or it was used or intended to be used by the accused to do bodily harm. See also United States v. Palmer, 41 M.J. 747 (N.M.Ct.Crim.App.1994) (unloaded pistol is a dangerous weapon for purposes of lawful regulation prohibiting unauthorized possession of dangerous weapon on base).
. An adjustment to the table of maximum punishments for an "assault with an apparently dangerous weapon” solves only part of the problem. The appellant’s conduct in this case was materially different from, and much more egregious and blameworthy than that found in a simple offer-battery assault (for example, a hand raised as if to strike).
. Recently a man armed with an unloaded pistol scaled a fence and entered the White House grounds. While struggling over the gun, both he and a secret service officer were wounded by another agent. Assuming that the intruder was a soldier who aimed his unloaded pistol at the agent, query: was the weapon used in a manner likely to produce death or grievous bodily harm when it provoked a foreseeable, deadly response?
. It should be noted that the Manual provision interpreting Article 128 relied upon Price v. United States, 156 F. 950 (9th Cir.1907). The Price approach makes perfectly good sense when applied to specific intent assault statutes such as Article of War 93 ("assault with intent to do bodily harm with a dangerous weapon, instrument, or other thing”) or 18 U.S.C. § 113(c) ("assault with a dangerous weapon, with intent to do bodily harm”), as the knowing use of an unloaded firearm during an assault negates the specific intent element of those crimes. That rationale, however, is misleading when applied to Article 128(b)(1), a statute that has no specific intent component.
. Although the majority opinion treats Smith as controlling in this offer-battery aggravated assault scenario, a close reading of that case reveals that it actually involved an attempted-battery aggravated assault. See United States v. Anzalone, 41 M.J. 142 (C.M.A.1994). The assailant in Smith uttered an obscene threat and advanced menacingly, knife in hand, toward his fleeing victim. He stopped only when ordered to halt by an intervening officer. Thus, the comments in Smith relied upon by the majority concerning an unloaded pistol are mere dicta in the context of that case.