(concurring in the result):
67. The question of what constitutes a lesser-included offense under Article 79, Uniform Code of Military Justice, 10 USC § 879, is a Hydra. Article 79 provides, “An accused may be found guilty of an offense necessarily included in the offense charged____” Resolution of this question involves issues of double jeopardy, double punishment, sua sponte instructions, duplicity, and multiplicity.
68. I agree with the majority that in determining what is a lesser-included offense under Article 79, one must examine “the specification, in combination with the statute [which] provides notice of the essential elements of the offense.” ¶ 19. See also ¶¶ 20, 23, 25. In essence, the majority holds that what is a lesser-included offense (LIO) is based on the specification, statutory elements, and maybe those elements “fairly embraced” in the charged offense. Schmuck v. United States, 489 U.S. 705, 719, 109 S.Ct. 1443, 1452, 103 L.Ed.2d 734 (1989) (LIOs include those “necessarily included” in the indictment); United States v. King, 10 USC-MA 465, 470, 28 CMR 31, 36 (1959) (“force and violence” includes grievous bodily harm). It was this analysis, which cites prior lesser-included-offense cases, that was employed in drafting the table that appears in Appendix 12, Manual for Courts-Martial, United States, 1969 (Revised edition). Analysis of Contents, 1969 Manual, supra at A12-2 (Dept, of the Army Pamphlet 27-2, July 1970). These cases are important because they establish that the question of what is a lesser-included offense is grounded in common law. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382,65 L.Ed.2d 392 (1980); Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973).
69. This table was divided and now appears in subparagraph d, Part IV, Manual for Courts-Martial, United States, 1984, and serves as a bright-line rule for determining lesser-included offenses. While this bright-line rule will not work in every case, it will apply in the great majority of cases, eliminate uncertainty, and avoid needless appellate review. For instance, in this case, the Manual lists as the lesser-included offenses under Article 128, UCMJ, 10 USC ¶ 928, assault in which intentional grievous bodily harm was inflicted — aggravated assault with a dangerous weapon, assault and battery, and assault. Para. 54d(7), Part IV, 1984 Manual, supra.
70. Since the term “grievous” was not alleged in the specification and a stabbing in the abdomen may be superficial, the judge did not find that the intent to inflict grievous bodily harm was subsumed in the intent to murder. I would hold that it is. Cf. United States v. Ricketts, 1 MJ 78 (CMA 1975).
71. In any event, based on the language in the majority opinion, in the future the prosecution will have to allege “grievous” in the specification. If the defense objects based on duplicity, then the Government would be entitled to have two specifications.