concurring in part and dissenting in part:
I concur with the majority in affirming all of the findings of guilty except for the aggravated assault. I would affirm an assault consummated by a battery, and upon reassessment of the sentence, I would set aside the dishonorable discharge and affirm a bad-conduct discharge.
The facts in this record establish an assault consummated by a battery. This offense resulted from the appellant’s use of fraud which vitiated Seaman Avila’s consent to having his hands and feet bound and entering the water. I dissent from affirming an aggravated assault in this case for two reasons. First, the record, when considered in its entirety, lacks a sufficient factual basis to support the guilty plea. The facts (as distinguished from the appellant’s legal conclusions) do not establish a means or force “likely” to produce death or grievous bodily harm. Second, if this is anything other than a consummated battery, it could only be what is known in various jurisdictions as the offense of reckless endangerment, not aggravated assault. In light of these conclusions, I find substantial bases to reject the appellant’s guilty plea to aggravated assault.
At the court-martial, in addition to pleading guilty to the aggravated assault, the appellant also pled guilty to absenting himself without authority for 15 days, making four false ofiSciai statements as to his true identity, impersonating a petty officer, and wearing unauthorized insignia. His guilty pleas to all of these other offenses were provident and are not at issue before us. The appellant has been properly convicted for the criminal conduct of masquerading as someone he was not.
During the providence inquiry on the aggravated assault, the appellant told the military judge that he bound Seaman Avila’s hands and feet and “caused” him to jump into deep water in a swimming pool for “drownproofing” exercises.7 While the ap*634pellant convinced Avila to enter the water, he did not push him in. He did admit lying to Avila about his true identity, and he stated that he was not “qualified” to teach the exercise. The following colloquy then took place:
MJ: And under the circumstances, with you not being trained in drownproofing techniques, are you satisfied in your own mind that you created a means or force likely to cause him to drown? ACCUSED: Yes, sir.
MJ: And that drowning would have produced grievous bodily harm?
ACCUSED: Yes, sir.
Record at 22 (emphasis added).
During the sentencing proceeding, the defense elicited that the appellant remained with Avila in the water, stayed above him and watched him continuously with goggles on, and that he kept a life ring nearby. The evidence also showed that the appellant was a capable swimmer and a paramedic before entering the Marine Corps and had completed courses in scuba diving, water survival, and providing emergency medical care. Prosecution Ex. 1. In response to questions from trial defense counsel, Avila testified that the appellant practiced with him for a full day before the incident:
Q. Now as far as the drownproofing, you guys just didn’t jump right into that, did you, as far as training?
A. We went to the pool; I think we practiced the 500-meter swim a few times, and then I asked about some of the further training.
Q. So you had practiced you said the 500-meter swimming?
A Yes, ma’am.
Q. You also practiced the 50-meter underwater?
A Yes, ma’am.
Q. The eggbeaters?
A Eggbeaters; yes, ma’am.
Q. So there were several other things that you had done. It wasn’t just that you sent in to do the drownproofing; correct?
A. No, ma’am.
Q. In fact, didn’t you actually practice for a full day before you did this, being tied up?
A. Yes, ma’am.
Q. And while you were doing this, anytime you were up at the surface, PFC Outhier was right there next to you; correct?
A. In the immediate vicinity, yes, ma’am. Q. When you were down at the bottom of the pool, he was right above you, wasn’t he?
A. Most of the time, ma’am.
Q. He was wearing goggles? He was watching what you were doing?
A. Yes, ma’am.
Q. And there was a life ring that was around all the time; correct?
A Yes, ma’am.
DC: Nothing further.
Record at 42. Based on the providence inquiry alone, the military judge was not aware that the appellant remained in the water to safeguard Avila or of any of the other additional facts related above. But after hearing these facts during the sentencing hearing, the military judge did not reopen the providence inquiry.
An accused’s acknowledgement of guilt based on a subjective belief that his conduct was criminal is insufficient to support his plea of guilty. His responses must establish factual circumstances that objectively establish his guilt. Rule for Courts-Martial 910(e); United States v. Anzalone, 41 M.J. 142 (C.MA.1994); United States v. Higgins, 40 M.J. 67 (C.M.A.1994); United States v. Schwabauer, 37 M.J. 338 (C.M.A.1993); United States v. Davenport, 9 M.J. 364 (C.M.A.1980); United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247, 1969 WL 6059 (1969); United States v. Dunning, 40 M.J. 641 (N.M.C.M.R.1994); United States v. Campos, 37 M.J. 1110 (N.M.C.M.R.1993); United States v. Evans, 35 M.J. 754 (N.M.C.M.R.1992). If an accused merely re*635cites legal conclusions in response to general queries which are phrased to elicit those conclusions, an insufficient factual basis exists to support the guilty plea. United States v. Terry, 21 C.M.A. 442, 45 C.M.R. 216, 1972 WL 14158 (1972); Dunning, 40 M.J. at 645; Campos, 37 M.J. at 1112. Inconsistencies and apparent defenses must be resolved or the guilty pleas must be rejected by the military judge. United States v. Newsome, 35 M.J. 749, 751 (N.M.C.M.R.1992), aff'd, 38 M.J. 464 (C.M.A.1993). Where the possibility of a defense exists or an inconsistent matter is set up, the military judge has the duty to inquire into the circumstances and secure satisfactory disclaimers by the accused of the possible defense. United States v. Prater, 32 M.J. 433 (C.M.A.1991); United States v. Lee, 16 M.J. 278 (C.M.A.1983); United States v. Thompson, 21 C.M.A. 526, 45 C.M.R. 300, 1972 WL 14181 (1972). When the record of trial shows a substantial basis in law and fact to question the guilty plea, it must be rejected. Prater, 32 M.J. at 436.
One of the elements of the offense of assault with a means or force likely to produce death or serious bodily harm is that the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm. Manual for Courts-Martial, United States, [MCM] 1984, Part IV, ¶ 54b(4)(a)(iv) (emphasis added). The word “likely” is defined in common English usage as something that is “probable,” “apparently destined,” or “to be expected.” Webster’s Third New International Dictionary 1310 (1971); The Random House College Dictionary 776 (Rev.1975).
Considering the facts in this record, I cannot conclude that the means or force used was “likely” to produce death or grievous bodily harm to Avila, even when his hands and feet were bound while in the pool. During the trial, numerous facts were elicited that should have prompted the military judge to reopen the providence inquiry. This inconsistency should have been resolved. Newsome, 35 M.J. at 751. In fact, Avila had a capable watchstander over him, a person who, while not honest about his identity, was indisputably a decent swimmer with medical training who had practiced extensively with Avila for a full day before the incident. Further, the fact that nothing happened to Avila is some evidence that the “means or force” used here was not likely to cause death or grievous bodily harm. Drowning or grievous bodily harm was not probable, apparently destined, or expected in this case.
The majority cites United States v. Joseph, 37 M.J. 392 (C.M.A.1993), and United States v. Johnson, 30 M.J. 53 (C.M.A.), cert. denied, 498 U.S. 919, 111 S.Ct. 294, 112 L.Ed.2d 248 (1990), for the proposition that the harm need only be more than merely a fanciful, speculative, or remote possibility for a means to be “likely” to produce death or grievous bodily harm. Both of these cases involved the possible transmission of Human Immunodeficiency Virus [HIV]. The discussion of the meaning of “likely” was in the context of the transmission of HIV and not to other types of assault cases. It appears that the U.S. Court of Military Appeals was willing to so define a “means likely” to produce death or grievous bodily harm in these cases because of. the nature of the severe threat posed by the spread of acquired immune deficiency syndrome [AIDS] and the detrimental effect it could have on the armed forces and our nation’s defense. As stated by a New York court, “[A]t no time in recent history has there been an issue capable of causing such anxiety and fear.” Anne D. v. Raymond D., 139 Misc.2d 718, 528 N.Y.S.2d 775 (1988).
It stands to reason why such cases are treated in a special category, for after the “touching,” the accused has no control over the risk of infection, and the risk of death or grievous bodily injury lingers afterwards, both making it more likely that the person could be infected. But in the case at bar, the appellant remained present to exert control to prevent any harm to befall Avila, and after Avila left the water, any possible risk of harm ended, making it much less likely that he would suffer death or grievous bodily injury than a person exposed to HIV. Therefore, the standard announced in Joseph and Johnson defining a “means likely” should not be extended to this case.
The holding in this case adopts an unprecedented extension in the military law of as*636sault by applying such a low standard for the meaning of “a means or force likely” in a non-HIV aggravated assault scenario. Forty-two years ago, the Court of Military Appeals articulated the standard for determining the existence of a means or force likely to produce death or grievous bodily harm:
In determining whether a particular weapon, means, or force is one likely to produce grievous bodily harm, the nature of the weapon, means, or force itself is of some importance, but is not conclusive. The crucial question is whether its use, under the circumstances of the case, is likely to result in death or grievous bodily harm____
Persuasive evidence upon this question is found in the nature of the means or force itself, the manner of its use, the parts of the body toward which it is directed, and where applicable, the extent of the injuries inflicted. United States v. Vigil, 3 C.M.A. 474, 476-77, 13 C.M.R. 30, 32-33, 1953 WL 2386 (1953); see also MCM, 1984, Part IV, ¶ 54c(4)(a)(ii) (defining a means or force likely as one where the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm). Neither Joseph nor Johnson expressly overruled the above test for non-HIV cases.
The appellant did admit to the military judge that he was not “qualified.” From this admission, the appellant then concluded, in response to a question from the military judge, that he had created a means or force likely to cause Avila to drown. As I read the record, “qualified” may mean one or two things. Either the appellant was not adept enough in the water to save Avila in an emergency (as the majority interprets it), or it could mean only that he was not an officially certified instructor of the drownproofing exercise. Based on the appellant’s actual swimming abilities, it appears the former meaning is simply not true and inconsistent, as I have already explained, with other evidence in the record. The latter meaning, that the appellant was not certified, would not add anything legally significant to the factual basis for the plea. The law demands that we examine whether the appellant in fact created a means likely to produce Avila’s death or grievous bodily harm, and not rely only on his lack of official certifications.
In short, the proper focus in this case should not be on the appellant’s official certifications, but rather on the his actual skills. The appellant’s conclusion that he was not qualified, which was contradicted by the evidence of his swimming abilities, is inconsistent with his guilty plea. In light of the facts, we should also not rely on the appellant’s conclusion that “in his mind” he was satisfied that the means or force was likely to produce death or grievous bodily harm. Consequently, the circumstances of this case illustrate a substantial basis in law and fact to reject the plea.
Secondly, if the appellant committed any crime beyond an assault consummated by a battery in this incident, it could only be one known in civilian jurisdictions as reckless endangerment. The genesis of this statutory crime was from a gap in the law. At common law, if a person created a risk of bodily harm to another by some reckless conduct, but did not intend to harm another, and the other person was unaware of the danger which threatened him, the accused committed no offense. 2 Charles E. Torcía, Wharton’s Criminal Law § 203 (14th ed. 1979). The offense of reckless endangerment was adopted by statute8 in various jurisdictions to fill this gap. Id.; Rollin M. Perkins & Ronald N. Boyce, Criminal Law 850-51 (3d ed. 1982). Such legislation completes the pattern. If an accused acts recklessly causing another’s death, he may be guilty of manslaughter or negligent homicide. If he acts recklessly causing another’s injury, he may be guilty of battery. If he acts recklessly and only endangers another, he may be guilty of reckless endangerment. Torcía, supra, § 203; Model Penal Code § 211.2 cmt. 2, reprinted in ALI Model Penal Code *637and Commentaries [hereinafter ALI Commentaries] at 199-200 (1980).
Reckless endangerment itself has not been recognized as a violation of the UCMJ. In fact, just the opposite may be true. See United States v. Irvin, 21 M.J. 184, 188-89 (C.M.A.1986) (stating various violations of Colorado’s child endangerment statute do not constitute assaults under military law). It has also been stated: “It has long been settled that there are no federal common law crimes; if Congress has not by statute made certain conduct criminal, it is not a federal crime.” Wayne R. LaFave & Austin W. Scott, Jk., Substantive Criminal Law § 2.1 (1986). It appears the only way reckless endangerment could possibly arise in a court-martial would be under Article 134, UCMJ, by using the Federal Assimilative Crimes Act, 18 .U.S.C. § 13 (1988). However we are precluded from applying it as a closely-related offense under United States v. Felty, 12 M.J. 438 (C.M.A.1982), because we are not aware of the jurisdictional facts to warrant application of the Act.
Additionally, there is persuasive authority that bodily injury is a necessary element in an aggravated assault. In their discussion of the law, Perkins & Boyce, supra, refer to the Model Penal Code requirement for “bodily injury” in this offense. Perkins & Boyce, supra, at 181-82; Model Penal Code § 211.1(2) (1985); see also ALI Commentaries, § 211.1 cmt. 2 at 185; LaFave & Scott at § 7.15. The Model Penal Code defines bodily injury in an aggravated assault as some “physical pain, illness or physical impairment.” Model Penal Code § 210.0(2). From these authorities, it appears that the substantive law of aggravated assault requires some bodily injury, at least in a battery-type aggravated assault.9
To find an aggravated assault in this case is certainly novel, and in my view, a significant expansion of the military law of assault that is not legally supportable. I have not found any other case involving an aggravated assault with such facts. Except for the HIV cases, I have also been unable to find any precedent for affirming an aggravated assault in a case of an assault of the consummated-battery variety where the victim was not injured.10
In this case, Avila suffered no bodily injury, as that term has been defined above. From the record before us, the drownproofing exercise was completed without a hitch. If reckless endangerment were an offense under the UCMJ, we could analyze this case under its framework. But without it, we are left to try to “shoehorn” this case into the existing military law of aggravated assault. However, it simply does not fit.
. Testimony at the trial established that "drown-proofing" is a part of the training in the Basic Underwater Demolition/SEAL program in which individuals are tied at the hands and feet and then enter deep water. They are then expected to blow air out of their lungs to enable them to sink to the bottom, then push off the bottom to *634the surface for more air. The purpose of the exercise is to teach individuals to relax in the water. Record at 39-40.
. See, e.g., Md.Ann.Code art. 27, § 120; Wash. Rev.Code Ann., § 9A.36.050; Ill.Ann.Stat, 38 § 12-5(a); Me.Rev.Stat.Ann. tit. 17-A, § 211(1); Model Penal Code § 211.2 (1985) ("A person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury."); see also Minor v. State, 326 Md. 436, 605 A.2d 138 (1992); State v. O’Neal, 23 Wash.App. 899, 600 P.2d 570 (1979).
. The majority correctly notes that MCM ¶ 54c(4)(a)(iv) states that “death or injury” are not required to effect an aggravated assault. This provision must be questioned in a battery-type aggravated assault in light of the legal authority to the contrary. It is noted that the previous edition of the MCM did not include the words “[djeath or injury not required.” See, MCM (1969 Rev.), ¶ 207c(l). It only stated that death or grievous bodily harm were not necessary in an aggravated assault. The 1984 edition added these words and thereby took the position that no injury at all was required. No legal authority was cited for this change. Moreover, we should also keep in mind that construction of substantive criminal law is within the province of the courts, and any apparent view to the contrary in the MCM is no barrier. Anzalone, at 147 n. 2.
. In United States v. Brantner, 28 M.J. 941 (N.M.C.M.R.1989), this Court affirmed an aggravated assault where a Marine Corps recruiter deceived recruits into believing they were required to undergo certain medical procedures prior to enlisting. In addition to various other indecent assaults, he injected water into their buttocks and removed fluids from other very sensitive and private parts of their bodies with an unsterilized needle. The Court concluded such acts constituted a means likely to produce grievous bodily harm. 28 M.J. at 944. Citing MCM ¶ 54c(4)(a)(iv), the Court stated that an injury was not required for the offense. However, there would be an injury in that case under the Model Penal Code definition of "injury” because the insertion of the needle was obviously painful for the recruits. Consequently, the statement that an injury was not required was dicta.