dissenting:
This case should be returned to the convening authority for a rehearing. The findings are ambiguous and should be clarified. In addition, the instructions from the military judge were deficient and prejudicial to the accused. Even if these significant legal errors were not present in the case, I would find that the evidence was factually insufficient to sustain the conviction for murder.
I.
This case has been presented on appeal to this Court by both appellate counsel on the premise that the appellant was convicted of a violation of Article 118(3) of the Uniform Code of Military Justice. That conclusion, however, is not at all clear from the record of trial and the findings worksheet.
Under Article 66(c), 10 U.S.C. § 866(c), this Court may “affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” We cannot perform properly our review function under the mandate of Article 66 if we are uncertain of the precise offense of which the appellant has been convicted.
The pertinent charge and specification alleges that the appellant “did, at Panama City, Panama, on or about 25 January 1990, murder Leila Edith Dias Panai [sic] by means of shooting her with a M16A2 rifle.” This specification format is consistent with the sample specification shown in the Manual. See MCM 1984, Part IV, para. 43Í.1 It is also consistent with the model specification shown in the Judges’ Benchbook to allege a violation of Article 118(2), more commonly known as unpremeditated murder.2 Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook, para. 3-86 (1 May 1982) [hereinafter Benchbook]. It is inconsistent, however, with the Benchbook model specification for an Article 118(3) charge, identified as “[m]urder while engaging in act inherently dangerous to others,” in that the words “by engaging in an act inherently dangerous to others” are not contained in the specification and the act or acts are not further identified.3
Although I am satisfied that the military judge erred when he failed to require the government to amend the specification to reflect both Article 118(2) and Article 118(3), that deficiency is not plain error and was not prejudicial to the accused. The doctrine of waiver can be applied to the “notice pleading” used in this case as the defense counsel did not request a bill of particulars under R.C.M. 906(b)(6) in order to be informed of the nature of the charge with precision. During an Article 39(a) session early in the proceedings, the trial counsel argued that some evidence the government would present on the merits would show that the accused willfully discharged a firearm showing wanton disregard for human life as required for a *867violation of Article 118(3). Thus, the accused was on notice early in the proceedings that the government was pursuing charges under Article 118(3) as well as Article 118(2). In addition, the defense fully participated in the trial and put on evidence that tended to rebut either offense.
After the presentation of evidence, the trial counsel informed the military judge that the government wished to proceed to instructions on “subdivision two or three” of Article 118. Trial defense counsel did not object. Both government counsel and defense counsel participated in the discussions concerning instructions for Articles 118(2) and 118(3). Government counsel forcefully presented argument addressing both offenses during closing argument, while the trial defense counsel highlighted the evidence that tended to negate both. Instructions from the military judge covered the elements for both offenses.
While I am persuaded that the appellant was not prejudiced in any way by the failure of the government to utilize the proper charging format, the findings resulting from that error are a completely different matter.4 When the members returned from deliberations on findings, the military judge reviewed the Findings Worksheet, Appellate Exhibit XXXIV, and handed it back to the President of the panel who then stated to the appellant that “this court-martial finds you: Guilty of All Charges and Specifications.” The announced findings were not further delineated as to the offense involved under Article 118.
During our review of the Findings Worksheet, Appellate Exhibit XXXIV, we noted that the “not guilty” portion adjacent to Charge II (the violation of Article 118) was lined-out with a bail-point pen, indicating that the appellant was found guilty of the charge and specification. A pencil annotation immediately under the lined-out portion, however, states “Theory 2—while committing an act dangerous to others.” Other marks on the Findings Worksheet have been made with a felt-tip pen. Whether the written pencil annotation regarding Charge II was made by the president or other member of the court-martial panel, by someone acting on the instructions of the members, or by others persons after trial cannot be determined from the record.
The Findings Worksheet, which may have contained the pencil annotation at the time the president announced the findings, did not amount to an “announcement” of findings. See R.C.M. 921(d). Findings by exceptions and substitutions were not entered to clearly indicate that the accused had been convicted of Article 118(3) rather than Article 118(2). In addition, it is clear that Article 118(3) is not a lesser included offense of Article 118(2). Thus, the record indicates as a matter of law that the appellant was charged with and convicted of a violation of Article 118(2) as shown by the findings that were announced in court.
If we assume that the pencil annotation was made by the president acting on behalf of the members, then an issue is raised concerning ambiguous findings. The law clearly requires that findings be certain, definite, and free from ambiguity. See United States v. Read, 29 M.J. 690 (A.C.M.R.1989), review denied, 30 M.J. 34 (C.M.A.1990). In addition, the military judge has the obligation to ensure that complete findings are announced. United States v. Johnson, 22 M.J. 945 (A.C.M.R. 1986), review denied, 23 M.J. 253 (C.M.A. 1986). In this case the pencil annotation, if made by the president or members, represents an ambiguous finding that the military judge should have clarified at the time findings were announced in court. See R.C.M. 922(d).
Although my brothers assume that the pencil annotation on the findings worksheet indicates that the appellant was found guilty of a violation of Article 118(3), the record of trial does not support that conclusion, and the case law does not permit such *868latitude.5 Because I have concluded that, as a matter of law, the appellant was convicted of a violation of Article 118(2), the efforts by his appellate defense counsel to argue the conviction before this Court on the assumption that Article 118(3) was violated denies the appellant a substantial right; appellate review of his conviction under Article 118(2). Conversely, the appellant has no statutory right to a review by this Court of an offense for which he was not convicted (i.e., a violation of Article 118(3)).
Were it not for the ambiguity with the findings worksheet, this case could be reviewed under Article 66 as a conviction for a violation of Article 118(2). In an abundance of caution and mindful that ambiguities in findings should be interpreted to favor the accused, however, I would return the case to the convening authority for a rehearing.
II.
In this case we are forced to confront the dilemma facing this combat infantryman— was it lawful for him to kill a target even though he had been engaged in prior misconduct by being a conspirator in the sham firefight? In this type of case the tendency is to focus on the effect—a dead innocent civilian, rather than on the actor and the act—a young, scared, combat infantryman who may have fired at what he thought was an enemy soldier.
A.
I agree with the appellant’s contention that the evidence is factually insufficient to support a murder conviction under Article 118(3). There is ample support for the appellant’s contention in the record of trial:
1. The record indicates that the appellant fired his weapon into the air while standing in the street outside the Fénix Club. He also fired his weapon during the sham firefight after he requested permission to shoot from his superiors. He then fired three shots at a supposed target on top of the three story building. While the request and firings were part of the sham, the acts hardly evince wanton disregard for human life. The government failed to *869prove beyond a reasonable doubt how many other shots were fired by the appellant as part of the sham, or to prove from where those shots were fired.6
2. Several soldiers thought the situation was a real engagement with the enemy. They observed what they thought were muzzle flashes from the three story building. They also thought initially that enemy fire was coming down the street at them. There is insufficient evidence in the record to show that the appellant did not think that their sham fight had become the real thing.
3. After the firing during the first phase of the sham firefight stopped, the appellant was required by his company commander to provide rear security for the soldiers as they started moving back to the school from the intersection where the sham incident occurred.
4. The record indicates that the appellant’s military superiors conceded that he lawfully entered the courtyard with rounds chambered in his weapon as part of the rear security element. Thus, some of his acts may have been justified.
5. A substantial period of time passed from the time of the first phase of the sham firefight until the appellant fired at the shadow. Mr. and Mrs. Panay had time after the sham firefight and search of the neighborhood to get back in bed and watch television. Mrs. Panay then decided to take a shower to cool off. She was struck by a bullet fired by the appellant as she stood near the shower stall in the courtyard and began to pour water over her body.
6. The appellant did not fire without warning—he called out for his target to stop by yelling “alto, alto” (i.e. “halt, halt”) in a loud voice. This action, if sincere, is inconsistent with a wanton disregard of human life.
7. The shots fired by the appellant at the shadow were the first rounds fired by any soldier during the second phase of firing. The government failed to prove beyond a reasonable doubt that the appellant fired the fatal shot as part of the sham firefight.
8. The record indicates that the rounds fired at the shadow by the appellant were intentionally-fired, quickly-aimed shots. Aimed shots intentionally fired at a suspected enemy or enemy location are factually and legally insufficient to support a conviction based on firing in a manner evincing a wanton disregard of human life.
9. Immediately after determining that the shots he fired had struck a civilian rather than an enemy soldier, the appellant called for a medic. This action is inconsistent with a state of mind that evinces a wanton disregard of human life.
B.
In addition to the factual infirmities I have noted in the government’s case, the appellant’s initial actions in the second phase of the incident may have been performed with justification or excuse.
First, the lawfulness of engaging a target in a war zone is not dependent upon the proximity of actual close combat in time or distance. Proximity to the action merely sheds additional light upon the state of mind of the shooter, but does not make lawful acts unlawful or unlawful acts justifiable. Thus, a soldier who honestly believes he is shooting a lawful enemy target may be justified in the eyes of the criminal law even though his unit has not been in actual combat with an enemy, and the only *870real combat has been in some other section of the city.
Second, unlawful conduct by a soldier, even though that conduct may occur immediately prior to engaging a suspected enemy target, does not necessarily make a subsequent shooting unlawful. The prior unlawful conduct of the shooter may, however, be relevant to the finder of fact in determining the soldier’s state of mind at the time he fired his weapon. In this case the relevant inquiry is whether the appellant intended to kill what he thought was an enemy target, or whether he was seeking to embellish the sham firefight, heedless of the consequences to civilians known to be in the area.
Third, the rules of engagement imposed by a commander are guidelines pertaining to firing of weapons. Those rules generally are aimed at preventing needless casualties and unnecessary destruction. Even if the rules of engagement are violated, however, the lawfulness of the killing resulting from the firing will be determined by the UCMJ and the law of war. Thus, even though a particular shooting may violate a command-imposed rule of engagement, and thus be subject to punishment under the UCMJ, the killing resulting from that shooting may nevertheless be lawful.
The appellant fired the fatal shot while he was required by his military superiors to provide rear security for his comrades. If he fired thinking he was shooting at an enemy, then the killing was justified, however unfortunate the death may have been.7 The question before this Court is not whether the accused was mistaken as to the identity of his target, but whether Mrs. Panay was killed, although mistakenly, without legal justification or excuse.
The issue of justification and the lawfulness of the killing may be determined by reference to the so-called “Rendulic Rule”—whether the accused acted within the limits of honest judgement on the basis of conditions as they appeared to him at the time. If the conditions at the time were sufficient for the appellant to honestly conclude that urgent military necessity warranted the decision he made, then he may have erred in the exercise of his judgement, but he was not guilty of a violation of Article 118 when he fired at the shadow.8 See Dep’t of Army, Pam. 27-161-2, Trials of War Criminals Before the Nuernberg Military Tribunals; International Law, Vol. II, at 246 (23 Oct.1962).
C.
Based upon the foregoing factual and legal premise, I am not convinced that the government proved beyond a reasonable doubt that the appellant’s actions in the initial moments of the second phase of the incident were without justification or excuse, that they evinced a wanton disregard of human life, or that the killing was unlawful. Thus, the record is factually insufficient to sustain the conviction and replete with legal error prejudicial to the appellant’s substantial rights.
*871III.
A soldier who kills an intended target, thinking it to be an enemy soldier at the instant of firing, even if he acts without justification or excuse, cannot be convicted, as matter of law, for a violation of Article 118(3). He can be convicted of a violation of Article 118(2), as he clearly had the requisite “intent to kill or inflict great bodily harm upon a person.”
Neither the legislative history of Article 118(3), the discussion of the offense in the Manual, nor the case law applicable to the clause, indicates that the provision was intended to apply to the situation where a combat infantryman shoots at an intended target, thinking it to be an enemy.
The two examples of the offense in the Manual, i.e., throwing a live grenade toward others in jest or flying an aircraft very low over a crowd to make it scatter, are materially different from the situation in this case if the accused was determined to shoot at an intended target. See MCM, 1984, Part IV, para. 43c(4)(a). Both of those examples involve patently illegal conduct that is inherently dangerous to others.
Each of the significant reported cases dealing with various aspects of Article 118(3) combine the fact of an apparently inadvertent death with conduct that was inherently dangerous and showed a wanton disregard for human life. See United States v. Davis, 10 C.M.R. 3 (C.M.A.1953) (victim shot during an armed robbery); United States v. Holsey, 10 C.M.R. 52 (C.M.A.1953) (soldier fatally shot during argument); United States v. Sandoval, 15 C.M.R. 61 (C.M.A.1954) (angry soldier fired into house occupied by prostitute and perceived interloper); United States v. Dacanay, 15 C.M.R. 263 (C.M.A.1954) (soldier shot co-worker during confrontation over girlfriend); United States v. Stokes, 19 C.M.R. 191 (C.M.A.1955) (drunken accused discharged weapon in car, killing occupant in front seat); United States v. Judd, 27 C.M.R. 187 (C.M.A.1959) (accused shot wife while she stood only a few feet away holding son); United States v. Hartley, 36 C.M.R. 405 (C.M.A.1966) (soldier shot another during struggle); United States v. Jacobs, 9 M.J. 794 (N.C.M.R.1980) (soldier killed his wife’s lover); United States v. Vandenack, 15 M.J. 230 (C.M.A.1983) (accused inadvertently killed another driver during a high speed vehicle chase). Unlike those incidents, in this case the appellant clearly intended to kill the enemy target. See United States v. Berg, 31 M.J. 38 (C.M.A.1990) (UCMJ art. 118(3) inapplicable; soldier killed companion with gunshot wound to head).
In the case at bar, the killing was not patently unlawful if the accused thought he was shooting at an enemy. The killing here is unlawful only if the government proves beyond a reasonable doubt that the accused acted without justification or excuse, i.e., that he did not think he was shooting at an enemy. If the finder of fact concludes the killing was without justification, then Article 118(2) is the applicable offense as the appellant clearly intended to kill or inflict great bodily harm upon his human target.
IV.
My brothers have indicated in Footnote 4 of their opinion that the law of the case is not intended to regulate the conduct of a combat infantryman in actual combat conditions. I am troubled, however, by their approach to the issue and the response from government counsel.
During oral argument the government contended, in response to a situation posed by the Court, that Article 118(3) would have been violated by any other soldiers who had not been a party to the sham firefight if they had also fired at the shadow believing it to be an enemy. This narrow perception of the lawfulness of the actions of combat infantrymen is flawed and must be corrected.
A.
The accused apparently thought that the six rounds he fired during the first few moments of the second phase of the firings were part of a “combat incident.” The record can be construed to mean that the accused thought the sham firefight of the first phase of the incident had become actu*872al combat for the start of the second phase. The government had the burden to prove that the appellant killed Mrs. Panay without justification or excuse, a burden that could be met only by proving beyond a reasonable doubt that the accused did not think he was firing at an enemy.
B.
Several fundamental propositions are important for lawyers and judges to understand when examining the conduct of an infantryman in a combat zone.
First, the mission of a U.S. Army infantryman is to “close with and destroy or capture the enemy.” Soldiers who perform that mission aggressively and efficiently are rewarded with commendations, advancement, and decorations for valor.
Second, the combat infantryman exists in wartime to personify acts that are inherently dangerous to others. These soldiers are expected to be “tenacious warriors.”
Third, the combat infantryman is not taught to shoot to wound, but to aim for the center of mass of the intended target. The necessary implication is that a human target may be destroyed by either severe wounding or death. Shooting at the center of mass of an intended target, whether by aimed fire or “quick fire” (i.e., instinctively aimed shots), is not wanton disregard for human life in the sense contemplated by Article 118(3).
Fourth, enemy soldiers who are not “out of combat” (i.e., those who are wounded and unable to resist, or who have surrendered) may, under most circumstances, be lawfully killed whether or not they are armed and whether or not they are firing at our soldiers. They may also be lawfully killed by “reconnaissance by fire,” a technique that does not require clear identification of a target, and does not of itself show a wanton disregard of human life as prohibited by Article 118(3).
Fifth, war is a horrible, bloody business in which innocent people and friendly forces are killed or wounded by “friendly fire.” The death of an innocent person during a combat firing incident where a soldier thinks he is shooting at an enemy target is not a murder within the meaning Article 118(3).
While these observations may apply in varying degrees to the actions of the accused in the initial moments of the second phase of the incident, they are not intended to excuse the morally reprehensible acts he perpetrated. He should be held accountable for his actions in creating the dangerous circumstances that ultimately led to Mrs. Panay’s death. He also should answer for firing his weapon in violation of the rules of engagement without clearly identifying his target. But he is not guilty of murder if he truly thought he was firing at an enemy, a question that can be answered by the members only after proper instructions on the law.
. “In that _ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about-19_, [with premeditation] [while (perpetrating) (attempting to perpetrate) _] murder _by means of (shooting him/her with a rifle) (_).”
. "In that _ (personal jurisdiction data) did, (at) (on board)_, (subject-matter jurisdiction data, if required) on or about _ 19_, murder _ by means of (shooting him/her with a rifle) (pushing him/her over a cliff) (running into him/her with an automobile) (-).”
. "In that _ (personal jurisdiction data) did, (at) (on board) (subject-matter jurisdiction data, if required) _, on or about - 19_, murder_by engaging in an act inherently dangerous to others, to wit: __” See Benchbook, para. 3-86 Ill.a.
. The government could have avoided these issues entirely by utilizing on the charge sheet and the findings worksheet the more detailed form specifications for Articles 118(2) and 118(3) contained in the Benchbook rather than the incomplete example found in para. 43f, Part IV of the Manual.
. In United States v. Vidal, 23 M.J. 319 (C.M.A. 1987), cert, denied, 481 U.S. 1052, 107S.Ct. 2187, 95 L.Ed.2d 843 (1987), a rape case that concerned liability as a perpetrator or aider and abettor, the court noted that the members are not required to agree as to the particular theory of liability in reaching the two-thirds concurrence necessary for a conviction. The court went on to note that "[t]he only condition is that there be evidence sufficient to justify a finding of guilty on any theory of liability submitted to the members.” 23 M.J. at 325.
The reasoning in Vidal (i.e. that different theories of guilt can support a conviction for an offense) does not apply to the case at bar. Article 118 includes four fundamentally different offenses, denoted in the statute as clauses (1) thru (4). While it might be argued that the four subdivisions of murder under Article 118 are merely different "theories” supporting a single offense of murder, that approach does not withstand close examination.
First, each of the clauses under Article 118 is treated as a different offense with different elements of proof. Second, there is little doubt that our courts would set aside a guilty finding that was based in part on one subdivision and in part on another. For example, we would set aside a conviction if some of the members in a trial voted for conviction based upon their factual conclusion that an accused acted with premeditation while others members voted for a finding of guilty while relying upon acts inherently dangerous to others.
In this case, the military judge advised the members that they could find the accused guilty under either of two "theories” i.e. “unpremeditated murder or murder while engaging in an act inherently dangerous to others.” But he also cautioned the members that they must vote on the "theories" separately. Thus, this case properly treats the two "theories” as two separate offenses.
My problem comes from trying to discern which of the two offenses the members intended to rely upon in reaching their finding of guilty. They apparently considered the offenses separately, but which of them received the necessary majority vote? Does the pencil annotation, the only pencil mark on any of the four pages of the findings worksheet, represent the vote of the members, the individual feelings of the president, or the analysis of the findings after trial by someone seeking to clarify the situation and respond to the trial defense counsel’s seven-page request for reexamination of the findings? If the members voted for the offense involving acts inherently dangerous to others, why did they not enter findings by exceptions and substitutions? Did they attempt to perform their duties properly, only to have the military judge fail to clarify the ambiguity created by the pencil annotation on the findings worksheet? See R.C.M. 921(d).
. My review function under Article 66, was severely hampered by the poor quality of Prosecution Exhibit 2, a double exposed Polaroid-type picture of a large diagram that was used at trial to identify the location of the persons involved in the incident. While a photographic rendering of an exhibit may be permissible under some circumstances, the poor quality of Prosecution Exhibit 2 prevents a thorough review of the unique facts of this case, and denies the appellant a substantial right. In my view, the appellant has been prejudiced by the omission from the record of the actual diagram used as Prosecution Exhibit 2, or, in the alternative, of a photograph of the diagram that clearly identifies all marks made upon that exhibit. In my mind, this issue alone is a sufficient basis to set aside the conviction if the original cannot be produced. See United States v. Booth, 33 M.J. 939 (N.M.C.M.R. 1991).
. The facts of this case would support a conviction for a violation of Article 118(3) if the military judge instructed the members that they could convict the appellant of the offense only if they found that he did not believe he was shooting at an enemy when he fired his weapon at the shadow in the courtyard. Although the military judge mentioned justification in regard to Article 118(2), he did not give an instruction explaining that concept as it applied to Article 118(3).
I would find prejudice to the substantial rights of the accused for this omission even though the trial defense counsel failed to object to the instructions. The record clearly indicates that the trial defense counsel did not understand the issue of justification from the inception of the trial until after his discussion with the military judge concerning proposed instructions. This failure to understand that the government had the burden to prove that the accused acted without justification or excuse, or to raise the issue as the affirmative defense of justification, may have been ineffective assistance of counsel within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. In this case the military judge instructed the members under Article 118(2) that the accused’s actions would be justified if he “honestly and reasonably believed that he was firing in response to an enemy or any other type of combatant____” This instruction is inconsistent with the subjective standard incorporated in the "Rendulic Rule.” The instruction was prejudicial even without a defense objection.