(concurring in the result):
My careful reading of the majority’s opinion shows a somewhat conflicted* wandering *214through some of our ease law involving Article 128, Uniform Code of Military Justice, 10 USC § 928. It seems to be for no clear-cut purpose, since the majority finally states at the end of its inconclusive review of the law:
It is somewhat unclear what test the court below actually applied in this case____ In this case, however, we need not decide whether the court below applied an inaccurate standard; nor need we remand the case for clarification, because we are satisfied that any misconception regarding the correct standard was harmless.
49 MJ at 212.
Although I cannot sign up with the majority’s dicta, I join it in affirming this case. The evidence at trial supports appellant’s conviction. Appellant’s vicious battering of his wife was clearly found by the Court of Criminal Appeals to be an aggravated assault within the meaning of Article 128(b)(1). It said:
This incident was but a microcosm of appellant’s intense verbal and physical reactions to his deteriorating marriage. Here, appellant was the aggressor in a violent physical argument and AMW’s only response was to try and avoid the blows. The assault took place in a confined area and AMW was unable to escape. Appellant grabbed AMW by the neck, dragged her across the room, bent her over backwards, all with increasing pressure. A short time later while AMW was sinking to the floor to get away from the blows, she received a kick to the face which landed on or near her eye. The choking and the kick were not isolated incidents but occurred in the midst of repeated blows. These assaults were not delivered to the victim’s torso or legs but rather to her neck and head. Moreover, the choking was with increasing pressure and the kick was directed towards the vulnerable facial region. The nature of the fight, the potential for serious injury to the head and neck, the victim’s lack of resistance and inability to escape, and appellant’s highly emotional state and resultant lack of control convince us these incidents were accomplished with a means or force likely to produce grievous bodily harm.
Unpub. op. at 4.
I agree!
The majority’s proposed two-pronged analysis seems to be a new concept and therefore conflicts with our prior case law, e.g., United States v. Joseph, 37 MJ 392 (CMA 1993).