[196]*196
Opinion of the Court
GIERKE, Judge:
A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of rape and assault with intent to commit rape, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 USC §§ 920 and 934, respectively. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 6 years, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
Our Court specified the following issue:1
WHETHER THE CHARGE AND ADDITIONAL CHARGE ARE GREATER AND LESSER INCLUDED OFFENSES AND THEREFORE MULTIPLICIOUS FOR FINDINGS; AND, IF SO, WHETHER APPELLANT HAS WAIVED THE ISSUE.
Factual Background
Appellant was charged with rape and assault with intent to commit rape. The rape specification alleges that appellant “did, at or near San Antonio, Texas, between on or about the evening of 23 October 1994 and on or about the morning of 24 October 1994, rape [MJR].” The assault specification alleges that appellant “did, at or near San Antonio, Texas, between on or about the evening of 23 October 1994 and on or about the morning of 24 October 1994, with intent to commit rape, commit an assault upon [MJR] by dragging her down the hall of his residence, throwing her onto his bed and pinning her onto the bed.”
Before trial, defense counsel filed a motion for a bill of particulars to make the date, place, and time of the alleged offenses more specific. At trial, defense counsel withdrew the motion and stated on the record that he had been provided sufficient information about the offenses to prepare a defense.
Appellant and Airman First Class (A1C) MJR worked together in the same unit and became Mends. They decided to socialize together and on the night of October 23, 1994, MJR went to appellant’s house, where they spent some time drinking beer and watching a movie. MJR did not consider it a “date.”
MJR testified that while they were sitting on a sofa and watching the movie, appellant put her leg on top of his. She told him to “quit it.” Appellant asked MJR to scratch his back and she agreed. Appellant removed his shirt, saying that “he couldn’t feel [MJR’s] nails.” When the movie ended, appellant started a second movie, came back to the sofa, grabbed her neck, and tried to kiss her. MJR testified that she told him to stop; “that we were just Mends.” She said that she tried to stand up and leave, but appellant grabbed her around the waist and pulled her toward the bedroom and threw her on the bed. She testified that she tried to stand and leave the bedroom but appellant blocked the door, grabbed her around the waist from behind, and they fell backwards onto the bed. She testified that appellant got on top of her, pinned her hands above her head with his left hand and tried to remove her clothes with his right hand. She testified that he pushed her shirt and bra up, pulled her shorts and underwear down, and raped her.
In his pretrial statement to the Air Force Office of Special Investigations (OSI), appellant described the events differently. He told the OSI that as they were sitting on the sofa, he put MJR’s leg on top of his and began rubbing it, and she started to rub the inside of his left leg. He said that he asked MJR if she wanted to go to his room and she agreed. They walked to the bedroom together, undressed, and had consensual intercourse. Appellant did not testify at trial. [197]*197Defense counsel did not raise the multiplicity issue at trial. The prosecution theory was that the element of force in the rape charge was proven by the acts alleged in the assault charge, and that both charges arose “out of the same incident, the same conduct that occurred on that night.” Appellant was convicted, as charged, of both rape and assault with intent to commit rape. At the end of the sentencing hearing, the military judge sua sponte announced that he considered the two offenses as a single offense for sentencing.
Discussion
Appellant contends that assault with intent to commit rape is included in the offense of rape. He further argues that the military judge’s failure to dismiss the lesser-included offense is plain error and therefore not waived by appellant’s failure to raise the issue at trial. The Government asserts that the offenses are factually separate because the assault with intent to commit rape was completed before the rape. The Government further argues that appellant waived the multiplicity issue by not challenging the specifications at trial.
An accused may not be convicted and punished under more than one statute for the same act, if it would be contrary to the intent of Congress. United States v. Teters, 37 MJ 370, 373 (CMA 1993). It follows that an accused may not be convicted and punished for two offenses where one is necessarily included in the other, absent congressional intent to permit separate punishments. See RCM 307(c)(4), Discussion, Manual for Courts-Martial, United States (1995 ed.) (“In no case should both an offense and a lesser included offense thereof be separately charged.”); RCM 907(b)(3), Discussion (“A specification is multiplicious with another if it alleges the same offense, or an offense necessarily included in the other.”); see also Albrecht v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 253, 71 L.Ed. 505 (1927) (“There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction ... and punishing also the completed transaction.”).
Where the intent of Congress is unclear, the Supreme Court uses the “elements” test to determine whether one offense is “necessarily included” in another. “Under this test, one offense is not ‘necessarily included’ in another unless the elements of the lesser offense are a subset of the elements of the charged offense.” Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989). Our Court applied the elements test in Teters, supra at 376, and in United States v. Foster, 40 MJ 140, 142-43 (CMA 1994), to determine if one offense was necessarily included in another.
The elements test is a rule of statutory construction. Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740 (1985). It is used to determine the intent of Congress where the legislative history does not display “an overt expression of legislative intent.” See Teters, 37 MJ at 376-77. Thus, where the intent of Congress is clear, we need not resort to the elements test. See United States v. Albrecht, 43 MJ 65, 67 (1995) (“Where Congress somehow has expressed its intent in this regard [as to multiplicity], the question easily is answered.”).
The legislative history of the treatment of assaults under the UCMJ reflects that Congress specifically rejected efforts to proscribe felonious assaults, that is, assaults with intent to commit specific felonies such as rape, under a separate penal statute.
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[196]*196
Opinion of the Court
GIERKE, Judge:
A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of rape and assault with intent to commit rape, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 USC §§ 920 and 934, respectively. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 6 years, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
Our Court specified the following issue:1
WHETHER THE CHARGE AND ADDITIONAL CHARGE ARE GREATER AND LESSER INCLUDED OFFENSES AND THEREFORE MULTIPLICIOUS FOR FINDINGS; AND, IF SO, WHETHER APPELLANT HAS WAIVED THE ISSUE.
Factual Background
Appellant was charged with rape and assault with intent to commit rape. The rape specification alleges that appellant “did, at or near San Antonio, Texas, between on or about the evening of 23 October 1994 and on or about the morning of 24 October 1994, rape [MJR].” The assault specification alleges that appellant “did, at or near San Antonio, Texas, between on or about the evening of 23 October 1994 and on or about the morning of 24 October 1994, with intent to commit rape, commit an assault upon [MJR] by dragging her down the hall of his residence, throwing her onto his bed and pinning her onto the bed.”
Before trial, defense counsel filed a motion for a bill of particulars to make the date, place, and time of the alleged offenses more specific. At trial, defense counsel withdrew the motion and stated on the record that he had been provided sufficient information about the offenses to prepare a defense.
Appellant and Airman First Class (A1C) MJR worked together in the same unit and became Mends. They decided to socialize together and on the night of October 23, 1994, MJR went to appellant’s house, where they spent some time drinking beer and watching a movie. MJR did not consider it a “date.”
MJR testified that while they were sitting on a sofa and watching the movie, appellant put her leg on top of his. She told him to “quit it.” Appellant asked MJR to scratch his back and she agreed. Appellant removed his shirt, saying that “he couldn’t feel [MJR’s] nails.” When the movie ended, appellant started a second movie, came back to the sofa, grabbed her neck, and tried to kiss her. MJR testified that she told him to stop; “that we were just Mends.” She said that she tried to stand up and leave, but appellant grabbed her around the waist and pulled her toward the bedroom and threw her on the bed. She testified that she tried to stand and leave the bedroom but appellant blocked the door, grabbed her around the waist from behind, and they fell backwards onto the bed. She testified that appellant got on top of her, pinned her hands above her head with his left hand and tried to remove her clothes with his right hand. She testified that he pushed her shirt and bra up, pulled her shorts and underwear down, and raped her.
In his pretrial statement to the Air Force Office of Special Investigations (OSI), appellant described the events differently. He told the OSI that as they were sitting on the sofa, he put MJR’s leg on top of his and began rubbing it, and she started to rub the inside of his left leg. He said that he asked MJR if she wanted to go to his room and she agreed. They walked to the bedroom together, undressed, and had consensual intercourse. Appellant did not testify at trial. [197]*197Defense counsel did not raise the multiplicity issue at trial. The prosecution theory was that the element of force in the rape charge was proven by the acts alleged in the assault charge, and that both charges arose “out of the same incident, the same conduct that occurred on that night.” Appellant was convicted, as charged, of both rape and assault with intent to commit rape. At the end of the sentencing hearing, the military judge sua sponte announced that he considered the two offenses as a single offense for sentencing.
Discussion
Appellant contends that assault with intent to commit rape is included in the offense of rape. He further argues that the military judge’s failure to dismiss the lesser-included offense is plain error and therefore not waived by appellant’s failure to raise the issue at trial. The Government asserts that the offenses are factually separate because the assault with intent to commit rape was completed before the rape. The Government further argues that appellant waived the multiplicity issue by not challenging the specifications at trial.
An accused may not be convicted and punished under more than one statute for the same act, if it would be contrary to the intent of Congress. United States v. Teters, 37 MJ 370, 373 (CMA 1993). It follows that an accused may not be convicted and punished for two offenses where one is necessarily included in the other, absent congressional intent to permit separate punishments. See RCM 307(c)(4), Discussion, Manual for Courts-Martial, United States (1995 ed.) (“In no case should both an offense and a lesser included offense thereof be separately charged.”); RCM 907(b)(3), Discussion (“A specification is multiplicious with another if it alleges the same offense, or an offense necessarily included in the other.”); see also Albrecht v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 253, 71 L.Ed. 505 (1927) (“There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction ... and punishing also the completed transaction.”).
Where the intent of Congress is unclear, the Supreme Court uses the “elements” test to determine whether one offense is “necessarily included” in another. “Under this test, one offense is not ‘necessarily included’ in another unless the elements of the lesser offense are a subset of the elements of the charged offense.” Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989). Our Court applied the elements test in Teters, supra at 376, and in United States v. Foster, 40 MJ 140, 142-43 (CMA 1994), to determine if one offense was necessarily included in another.
The elements test is a rule of statutory construction. Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740 (1985). It is used to determine the intent of Congress where the legislative history does not display “an overt expression of legislative intent.” See Teters, 37 MJ at 376-77. Thus, where the intent of Congress is clear, we need not resort to the elements test. See United States v. Albrecht, 43 MJ 65, 67 (1995) (“Where Congress somehow has expressed its intent in this regard [as to multiplicity], the question easily is answered.”).
The legislative history of the treatment of assaults under the UCMJ reflects that Congress specifically rejected efforts to proscribe felonious assaults, that is, assaults with intent to commit specific felonies such as rape, under a separate penal statute. A proposed Article proscribing felonious assaults was not enacted because such assaults were considered to be attempts, punishable under Article 80, UCMJ, 10 USC § 880. See United States v. Weymouth, 43 MJ 329, 338-40 (1995) (summarizing legislative history). Notwithstanding Congress’ rejection of a felonious-assault statute, such assaults have been prosecuted under Article 134 and have been considered lesser-included offenses of the intended felony. See paras. 43d(3), 44d(l), and 45d(l), Part IV, Manual, supra (1995 ed.); Appendix 12, Manual for Courts-Martial, United States, 1969 (Revised edition); Appendix 12, Manual for Courts-Mar[198]*198tial, United States, 1951; United States v. Gomez, 46 MJ 241 (1997) (prosecution for assault with intent to commit rape not preempted by Article 80). The legislative rejection of a felonious-assault statute suggests that Congress did not intend an accused to be convicted and sentenced for both rape and assault with intent to commit rape, simply because Congress did not intend that the UCMJ expressly prohibit the offense of assault with intent to commit rape. Furthermore, as we pointed out in Foster, 40 MJ at 146, “with regard to assaultive and sexual crimes, ... it is usually obvious that Congress could not have intended multiple convictions and multiple punishment for the selfsame act.”
Finally, to the extent that congressional intent is ambiguous, resorting to the elements test verifies that the assault of which appellant was convicted is included in the rape and thus is not a separate offense. The elements of rape are: “(a) That the accused committed an act of sexual intercourse; and (b) That the act of sexual intercourse was done by force and without consent.” Para. 45b(l), Part IV, Manual, supra (1995 ed.).2 It has long been recognized that a person who commits rape “necessarily commits an assault.” United States v. Headspeth, 2 USCMA 635, 636, 10 CMR 133, 134 (1953); see United States v. Schoolfield, 40 MJ 132, 137 n. 7 (CMA 1994) (indecent assault is lesser-included offense of rape).
The elements of assault with intent to commit rape are: “(1) That the accused assaulted a certain person; (2) That, at the time of the assault, the accused ... intended to commit rape ...; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in
the armed forces or was of a nature to bring discredit upon the armed forces.” Para. 64b, Part IV, Manual, supra (1995 ed.)
In Foster, 40 MJ at 143, this Court held that the third element of offenses under Article 134 is an implied element in the enumerated Articles. Thus, an offense under Article 134 can be a lesser-included offense of an offense under an enumerated Article, notwithstanding the requirement under Article 134 to prove that the conduct was prejudicial or service-discrediting.
Comparing the elements of the present offenses, we hold that the assault with intent to commit rape is included in the rape in this case because the assault is the force required by the second element of rape.3
We turn next to the question of waiver. Ordinarily, multiplicity is raised by a motion to dismiss under RCM 907(b)(3). In United States v. Lloyd, 46 MJ 19 (1997), this Court held that a multiplicity issue is waived by an unconditional guilty plea unless it rises to the level of plain error. Multiplicity is grounded in the Double Jeopardy Clause. Teters, 37 MJ at 373. Double-jeopardy claims are waived if not raised at trial. RCM 907(b)(2)(C); United States v. Collins, 41 MJ 428 (1995). Accordingly, we now hold that multiplicity is waived by failure to raise the issue by a timely motion to dismiss.
The final question is whether the multiplicious conviction in this case is plain error. In Lloyd, 46 MJ at 23, this Court, relying on United States v. Broce, 488 U.S. 563, 575,109 S.Ct. 757, 765, 102 L.Ed.2d 927 (1989), held that multiplicity issues may overcome waiver if the specifications are “ ‘facially duplicative’ that is, factually the same.” Applying the “facially-duplieative” test, we conclude that [199]*199the assault specification in this case facially duplicates the rape specification because it merely describes the force used to commit the rape. Accordingly, we hold that appellant’s conviction of both offenses was plain error and requires dismissal of the lesser-ineluded offense. We further hold, however, that appellant was not prejudiced with respect to sentencing, because the military judge treated the offenses as a single offense for sentencing.
Decision
The decision of the United States Air Force Court of Criminal Appeals as to the Additional Charge and its specification (assault with intent to commit rape) is reversed. The findings of guilty thereon are set aside and the Additional Charge and its specification are dismissed. In all other respects, the decision below is affirmed.
Chief Judge COX and Judge SULLIVAN concur.