joined by Judge WISS (dissenting):
I disagree with the holding in the majority opinion that the instruction on the lesser-included offense of assault and battery was waived. In United States v. Taylor, 26 MJ 127, 128 (CMA 1988), this Court held that RCM 920(f), Manual for Courts-Martial, United States, 1984, imposing waiver for failure to request an instruction or object to its omission, does not apply to “[r]equired instructions” but is limited to the instructions mentioned in RCM 920(e)(7). *365An instruction on lesser-included offenses is one of the “required instructions,” so it must be given sua sponte when raised by the evidence. RCM 920(e)(2).
I recognize that our precedents permit a defense counsel to affirmatively waive an instruction on a lesser-included offense in order to present an “all or nothing” defense. See, e.g., United States v. Snyder, 6 USCMA 692, 21 CMR 14 (1956) (request for instruction withdrawn after defense accepted law officer [now military judge]’s suggestion that it might weaken claim of self-defense); United States v. Bowers, 3 USCMA 615, 14 CMR 33 (1954) (instruction waived by alibi defense strategy). Nevertheless, we have applied waiver only in those rare cases of “an affirmative, calculated, and designed course of action by a defense counsel” leading the military judge to conclude that the defense did not desire an instruction on lesser-included offenses. See United States v. Moore, 12 USCMA 696, 700, 31 CMR 282, 286 (1962), quoting United States v. Mundy, 2 USCMA 500, 503, 9 CMR 130, 133 (1953).
There was no affirmative waiver in this case or anything resembling an “all or nothing” defense. Throughout the trial, the defense focused on appellant’s severe intoxication and erratic behavior. Defense counsel requested an instruction on assault and battery. After trial counsel asserted that assault and battery was not a lesser-included offense because touching the victim on the arm was not charged, defense counsel stated that he “withdr[e]w” his request. The military judge then concurred with trial counsel that touching the victim on the arm was not charged.
Both the military judge and trial counsel were wrong. See United States v. Duggan, 4 USCMA 396, 399, 15 CMR 396, 399 (1954) (“[W]e must look to the allegations of the specification, and proof in support thereof, in each case to determine whether a lesser offense is placed in issue____ [I]n an unbroken line of decisions we have made the test turn on both the charge and the evidence.”), cited with approval in United States v. Zubko, 18 MJ 378, 382 n. 6 (CMA 1984). Cf. United States v. McMillian, 33 MJ 257, 259 (CMA 1991) (assault was lesser-included offense of attempted robbery where the assault was the force used in the attempted robbery). Amazingly, the military judge thereafter instructed the members that the first element of the attempted kidnapping was an assault and battery, i.e., that appellant “put a gun up to the head of Silvia Martin, grabbed her by the arm, led her to the car, and forced her into the car at gun point.”
What we have in this case is not an affirmative waiver as part of an “all or nothing” defense but, instead, a mere failure to challenge trial counsel’s erroneous assertion that assault and battery was not a lesser-included offense of attempted kidnapping. Defense counsel did not affirmatively request that the instruction be omitted, but he simply made an erroneous concession that assault and battery was not a lesser-included offense of attempted kidnapping. Defense counsel’s actions in this case fell far short of the “affirmative, calculated, and designed course of action” required by Moore.
Defense counsel’s decision to “withdraw” his request for the instruction placed him in the same position as if he had failed to request it in the first place. Failing to request an instruction on a lesser-included offense raised by the evidence does not relieve the military judge of his sua sponte duty to give it. United States v. Jackson, 12 MJ 163, 166-67 (CMA 1981). See United States v. Langley, 33 MJ 278, 280 n. 3 (CMA 1991). Cf. United States v. Emmons, 31 MJ 108 (CMA 1990) (military judge properly instructed on lesser-included offense over defense objection).
Given the posture of the evidence on specific intent, I believe that the failure to instruct on the lesser-included offense of assault and battery, a general-intent crime, was prejudicial error. Accordingly, I dissent.