(concurring in part and dissenting in part) :
I concur in the majority’s disposition of the second and third issues, but dissent from that portion of the opinion relating to thg instructional error discussed under the first issue.
Doubtlessly, nothing short of an intent to kill will support a charge of assault with intent to murder. Since the law officer instructed the court that the intent required in the instant case was “to kill or inflict great bodily harm,” he erred. United States v. Floyd, 2 USCMA 183, 7 CMR 59. It does not follow from this, however, that the findings must be reversed. Un- der Article 59, Uniform Code of Military Justice, 50 USC § 646, we are required to reverse only if the error materially prejudiced the substantial rights of the accused, unless the error involves a departure from a constitutional norm or a specific command of Congress. United States v. Lucas, 1 USCMA 19, 1 CMR 19. In the case at bar the accused was prejudiced by the erroneous instruction only if it could fairly be said that the court convicted him upon the theory that the evidence failed to establish an intent to kill but did establish an intent to inflict great bodily harm.
The undisputed facts show that the accused, angered by a mess sergeant’s rebuke, procured a deadly weapon and announced his intention of shooting anyone who interfered with him. He repeated this threat to the first sergeant and fortified it by loading and aiming the weapon. When the gun was taken from him, he immediately obtained another, expressing an intention of shooting Lieutenant Maguire, his ultimate victim. Then, with the officer before him, he repeated his threats, loaded the weapon, took aim, and fired. In his description of these events, the accused declared that at this point he guessed “he would give him two” and fired again. Only one bullet struck the victim, and it found its mark in the victim’s chest.
The nature of the weapon used, the care with which it was aimed, the location of the wound actually inflicted, the announced purpose of the accused, spell out a fixed intent to kill. To find from these unequivocal indications merely an intent to inflict great bodily harm, the court-martial members would necessarily ignore their oath to “faithfully and impartially try [the case], according to evidence, . . . [their] conscience, and the law and regulations provided for trials by courts-martial.” It is beyond comprehension that men presumed by their appointment to membership on a court-martial to be the best qualified for such service by reason of *28age, education, training, experience, length of service, and judicial temperament, would discharge their duties with such callous indifference to uncontro-verted facts.
The opinions of this Court in United States v. Jenkins, 1 USCMA 329, 3 CMR 63, and United States v. Moynihan, 1 USCMA 333, 3 CMR 67, are of particular significance and I cannot lightly dismiss them from consideration. There we held that when multiple intents are erroneously instructed upon, we would determine whether reasonable minds could be confused or misled as to which intent was indicated by the facts. Since I find no possibility that confusion could result from the facts of this ease, I would affirm the decision of the board of review.