(concurring in part and dissenting in part):
In the supplement to the petition for grant of review, appellant set forth a single issue:
WHETHER THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH THAT APPELLANT ACTED “WILLFULLY AND MALICIOUSLY.”
This was the only issue on which we granted review, and I think it clearly deserves the answer reached by the majority. The evidence showed that the fire had begun in a canvas litter stacked under the stairwell of the Regional Hospital at Maxwell Air Force Base. After initially denying any involvement in the fire, Marks finally made a voluntary statement in which he admitted that he had “held the flame of a lighter to the canvas material on one of the litters”— shortly before the fire began. 25 MJ 653, 655 (AFCMR 1987). This evidence was sufficient to establish his guilt because, under the circumstances, the factfinder — here, the military judge — was entitled to disregard the exculpatory aspects of appellant’s pretrial statement and to rely upon the reasonable inferences of guilt from this evidence.
Unfortunately, the issue assigned by appellant and on which we granted review is not literally responsive to the point made by Judge Lewis in his cogent dissent in the court below. As he pointed out (25 MJ at 656), Marks was convicted of aggravated arson, which requires the Government to prove “that the accused set the fire willfully and maliciously, that is, not merely by negligence or accident.” Para. 52(c)(1), Part IV, Manual for Courts-Martial, United States, 1984. “[T]he requirement of willfulness” is satisfied when “a service-member ... knowingly starts a fire without lawful excuse and for some mischievous purpose ...” United States v. Caldwell, 17 MJ 8, 10 (CMA 1983) (emphasis added). Likewise, in United States v. Acevedo-Velez, 17 MJ 1 (CMA 1983), we made clear that the Government must prove that the accused has intentionally set a fire. Thus, if the factfinder accepted appellant’s version of events, his conduct lacked the requisite willfulness because he did not intend or desire that a fire actually be started.*
*5As the dissenters below pointed out, defense counsel asked the military judge to submit special findings. See RCM 918(b), Manual, supra. Unfortunately, though, the military judge failed to make a finding on the crucial element of intent. By reason of this failure, he left open the issue of what intent would suffice to establish liability for aggravated arson under the circumstances of this case.
Accordingly, I would remand the record so that the military judge could make the necessary findings or, if that proves impracticable, I would affirm a conviction of the lesser-included offense requiring only negligence. See Art. 108, Uniform Code of Military Justice, 10 USC § 908.
The majority opinion relies on a theory of "conditional intent" to find this willfulness. However, that theory, as discussed in the authorities cited by the majority, is inapposite under these facts. To illustrate the theory, one who breaks and enters a building to steal jewelry if he can find any does so with the conditional intent of stealing — that is, conditioned on finding jewelry inside. To analogize to this case, if appellant had set flame to the litter with the intent to burn the litter if it would burn, the theory of conditional intent would apply. In contrast to *5this hypothetical, however, appellant’s version reflects no such intent. Instead, his intent, under his version, was to see if it would burn— which stops short of an intent to bum if it will.