Opinion of the Court
COX, Judge:
Appellant was tried by a general court-martial with members at Travis Air Force Base, California, on November 16-24, 1987. Contrary to his pleas, he was found guilty of aggravated assault, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928.1 His sentence to confinement for 14 years, total forfeitures, reduction to airman basic, and a dishonorable discharge was approved by the convening authority. The Court of Military Review, in an unpublished opinion, affirmed. This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, BY INSTRUCTING THE COURT MEMBERS THAT THEY COULD CONSIDER AGGRAVATED ASSAULT WITH A DANGEROUS WEAPON, IN VIOLATION OF ARTICLE 128, AS A LESSER INCLUDED OFFENSE OF ARTICLE 118, UNPREMEDITATED MURDER.
Appellant was originally charged, inter alia, with unpremeditated murder, to which he pleaded not guilty. At or about midnight on the evening of June 20, 1987, he left his barracks at Travis AFB with two Air Force friends, Airman First Class Douglas L. Lawrence and Airman Donald L. Burton, in Lawrence’s car. They drove to see a friend of appellant in the nearby town of Vacaville, where they intended to purchase and use cocaine. Also, before leaving the base, Airman Burton said he wanted to bring his gun, a “.38 special,” because he wanted to take it with him the next day to a nearby lake. Airman Lawrence and appellant also owned guns, and each decided to take his weapon on the trip to Vacaville. Lawrence owned a “.380 semi-automatic pistol,” and appellant had a 9-millimeter, semi-automatic pistol.
Once at the house in Vacaville, the three men bought and snorted cocaine, and drank several beers with appellant’s friends until about 6:00 a.m. At that time, they began their trip back to the base. Lawrence was driving, but all three were very intoxicated. During the ride, appellant took Lawrence’s pistol from the console and held it up towards Lawrence’s head. The gun discharged, fatally wounding Lawrence. The car careened off the road and crashed. The police arrived shortly thereafter.
The Government’s case rested primarily on appellant’s confession, wherein he stated that he believed Lawrence’s gun was loaded when he picked it up from the console, but that he did not “know how or why the gun went off.” The Government also relied on Airman Burton’s testimony, extensive forensic evidence, and a stipulation of fact in which appellant agreed that Lawrence died from a gunshot wound to the head.
The defense introduced testimony from police investigators to support appellant’s claim that he did not know Lawrence’s gun was loaded.
Before closing arguments, the military judge informed counsel that he was going to instruct the members on unpremeditated [110]*110murder under Article 118(2) and (3), UCMJ, 10 USC § 918(2) and (3); aggravated assault with a loaded firearm under Article 128, UCMJ, 10 USC § 928; involuntary manslaughter caused by culpable negligence under Article 119, UCMJ, 10 USC § 919; and negligent homicide under Article 134, UCMJ, 10 USC § 934.
Defense counsel did not object to the instruction on involuntary manslaughter caused by culpable negligence. He did object, however, to the instruction for aggravated assault, arguing that the only difference between Articles 118 and 128 was that Lawrence was dead. The military judge ruled that he would give the instruction, stating:
MJ: The entire anthem of 128 violations, involving assaults, are lesser included offenses of the 118.
* * * * * *
MJ: I am going to give the instruction. It is raised by the evidence and it is completely different and is not covered. I do not find that simple assault is applicable as there is no evidence that the victim was ever placed in fear of an [imjminent battery, therefore also assault and battery would not be applicable because we do not have the assault. ...
The maximum punishment for unpremeditated murder is life imprisonment — para. 43e(2), Part IV, Manual for Courts-Martial, United States, 1984; for aggravated assault committed with a firearm, it is confinement for 8 years — para. 54e(8)(a), Part IV, Manual, supra; for involuntary manslaughter caused by culpable negligence, it is 3 years — para. 44e(2), Part IV, Manual, supra; for negligent homicide, it is 1 year —para. 85e, Part IV, Manual, supra. The instructions were presented to the members according to the severity of the punishment for each crime, rather than the elements.2 Defense counsel did not object to this procedure. Although not articulated by defense counsel, if the aggravated-assault instruction had not been given, the members would have been presented with sentencing prerogatives ranging from life imprisonment, dropping next to 3 years for manslaughter, without the intermediate punishment of 8 years for aggravated assault.
Appellant claims before this Court, as he did before the Court of Military Review, only that the instruction on aggravated assault was improper because there was no factual dispute as to the cause of death. The Government has conceded that the instruction was prejudicial error. It has asked that the finding of guilty to aggravated assault be set aside, and that instead we enter a finding of guilty to another lesser-included offense, involuntary manslaughter.
I
We first hold that the Government’s concession is not determinative of this appeal. See United States v. McNamara, 7 USCMA 575, 578, 23 CMR 39, 42 (1957). Turning to the alleged error, the standard for deciding when an instruction on a lesser-included offense is warranted is simply to determine whether, on the facts of the case, “the lesser offense” is “included within, but not ... completely encompassed by the greater” one. Therefore, “[a] lesser-included-offense instruction is only proper where the charged greater offense requires” court members “to find a disputed factual element which is not required for conviction of the” lesser violation. Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965).3
[111]*111The lesser-included-offense doctrine was developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged. It was also recognized, however, that a “defendant is entitled to an instruction on a lesser-included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct.1993, 1995, 36 L.Ed.2d 844 (1973) (emphasis added); see Sansone v. United States, 380 U.S. at 350, 85 S.Ct. at 1009.
An instruction on a lesser-included offense, when warranted, serves both the defense and the prosecution. “[I]f the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal.” Keeble v. United States, 412 U.S. at 212, 93 S.Ct. at 1998.
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Opinion of the Court
COX, Judge:
Appellant was tried by a general court-martial with members at Travis Air Force Base, California, on November 16-24, 1987. Contrary to his pleas, he was found guilty of aggravated assault, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928.1 His sentence to confinement for 14 years, total forfeitures, reduction to airman basic, and a dishonorable discharge was approved by the convening authority. The Court of Military Review, in an unpublished opinion, affirmed. This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, BY INSTRUCTING THE COURT MEMBERS THAT THEY COULD CONSIDER AGGRAVATED ASSAULT WITH A DANGEROUS WEAPON, IN VIOLATION OF ARTICLE 128, AS A LESSER INCLUDED OFFENSE OF ARTICLE 118, UNPREMEDITATED MURDER.
Appellant was originally charged, inter alia, with unpremeditated murder, to which he pleaded not guilty. At or about midnight on the evening of June 20, 1987, he left his barracks at Travis AFB with two Air Force friends, Airman First Class Douglas L. Lawrence and Airman Donald L. Burton, in Lawrence’s car. They drove to see a friend of appellant in the nearby town of Vacaville, where they intended to purchase and use cocaine. Also, before leaving the base, Airman Burton said he wanted to bring his gun, a “.38 special,” because he wanted to take it with him the next day to a nearby lake. Airman Lawrence and appellant also owned guns, and each decided to take his weapon on the trip to Vacaville. Lawrence owned a “.380 semi-automatic pistol,” and appellant had a 9-millimeter, semi-automatic pistol.
Once at the house in Vacaville, the three men bought and snorted cocaine, and drank several beers with appellant’s friends until about 6:00 a.m. At that time, they began their trip back to the base. Lawrence was driving, but all three were very intoxicated. During the ride, appellant took Lawrence’s pistol from the console and held it up towards Lawrence’s head. The gun discharged, fatally wounding Lawrence. The car careened off the road and crashed. The police arrived shortly thereafter.
The Government’s case rested primarily on appellant’s confession, wherein he stated that he believed Lawrence’s gun was loaded when he picked it up from the console, but that he did not “know how or why the gun went off.” The Government also relied on Airman Burton’s testimony, extensive forensic evidence, and a stipulation of fact in which appellant agreed that Lawrence died from a gunshot wound to the head.
The defense introduced testimony from police investigators to support appellant’s claim that he did not know Lawrence’s gun was loaded.
Before closing arguments, the military judge informed counsel that he was going to instruct the members on unpremeditated [110]*110murder under Article 118(2) and (3), UCMJ, 10 USC § 918(2) and (3); aggravated assault with a loaded firearm under Article 128, UCMJ, 10 USC § 928; involuntary manslaughter caused by culpable negligence under Article 119, UCMJ, 10 USC § 919; and negligent homicide under Article 134, UCMJ, 10 USC § 934.
Defense counsel did not object to the instruction on involuntary manslaughter caused by culpable negligence. He did object, however, to the instruction for aggravated assault, arguing that the only difference between Articles 118 and 128 was that Lawrence was dead. The military judge ruled that he would give the instruction, stating:
MJ: The entire anthem of 128 violations, involving assaults, are lesser included offenses of the 118.
* * * * * *
MJ: I am going to give the instruction. It is raised by the evidence and it is completely different and is not covered. I do not find that simple assault is applicable as there is no evidence that the victim was ever placed in fear of an [imjminent battery, therefore also assault and battery would not be applicable because we do not have the assault. ...
The maximum punishment for unpremeditated murder is life imprisonment — para. 43e(2), Part IV, Manual for Courts-Martial, United States, 1984; for aggravated assault committed with a firearm, it is confinement for 8 years — para. 54e(8)(a), Part IV, Manual, supra; for involuntary manslaughter caused by culpable negligence, it is 3 years — para. 44e(2), Part IV, Manual, supra; for negligent homicide, it is 1 year —para. 85e, Part IV, Manual, supra. The instructions were presented to the members according to the severity of the punishment for each crime, rather than the elements.2 Defense counsel did not object to this procedure. Although not articulated by defense counsel, if the aggravated-assault instruction had not been given, the members would have been presented with sentencing prerogatives ranging from life imprisonment, dropping next to 3 years for manslaughter, without the intermediate punishment of 8 years for aggravated assault.
Appellant claims before this Court, as he did before the Court of Military Review, only that the instruction on aggravated assault was improper because there was no factual dispute as to the cause of death. The Government has conceded that the instruction was prejudicial error. It has asked that the finding of guilty to aggravated assault be set aside, and that instead we enter a finding of guilty to another lesser-included offense, involuntary manslaughter.
I
We first hold that the Government’s concession is not determinative of this appeal. See United States v. McNamara, 7 USCMA 575, 578, 23 CMR 39, 42 (1957). Turning to the alleged error, the standard for deciding when an instruction on a lesser-included offense is warranted is simply to determine whether, on the facts of the case, “the lesser offense” is “included within, but not ... completely encompassed by the greater” one. Therefore, “[a] lesser-included-offense instruction is only proper where the charged greater offense requires” court members “to find a disputed factual element which is not required for conviction of the” lesser violation. Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965).3
[111]*111The lesser-included-offense doctrine was developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged. It was also recognized, however, that a “defendant is entitled to an instruction on a lesser-included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct.1993, 1995, 36 L.Ed.2d 844 (1973) (emphasis added); see Sansone v. United States, 380 U.S. at 350, 85 S.Ct. at 1009.
An instruction on a lesser-included offense, when warranted, serves both the defense and the prosecution. “[I]f the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal.” Keeble v. United States, 412 U.S. at 212, 93 S.Ct. at 1998. A defendant, however, is also “entitled to a lesser-offense instruction ... because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Id. at 212-13, 93 S.Ct. at 1998. By the same token, if the prosecution has met its burden of showing that an accused is guilty of “some” offense, and the defendant has been given adequate notice that a lesser-included offense is present, the Government should not be deprived of a conviction of the lesser violation. United States v. Stolarz, 550 F.2d 488 (9th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d 119 (1977).
The case before us is somewhat unique in that an accused most often claims that he was prejudiced by the lack of an instruction on a lesser-included offense. See Vujosevic v. Rafferty, 844 F.2d 1023 (3d Cir.1988); United States v. Wilson, 26 MJ 10, 13 (CMA 1988); United States v. Rodwell, 20 MJ 264 (CMA 1985). Nonetheless, an instruction on a lesser-included “offense may appropriately be requested by either the prosecution or the defense.” United States v. Scharf 558 F.2d 498, 502 (8th Cir.1977).
The elements of unpremeditated murder under Article 118(2) and (3), are:
43. Article 118 — Murder
* * * * * *
b. Elements.
* * * * * *
(2) Intent to kill or inflict great bodily harm.
(a) That a certain named ... person is dead;
(b) That the death resulted from the act or omission of the accused;
(e) That the killing was unlawful; and
(d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.
(3) Act inherently dangerous to others.
(a) that a certain named ... person is dead;
(b) That the death resulted from the intentional act of the accused;
(c) That this act was inherently dangerous to others and showed a wanton disregard for human life;
(d) That the accused knew that death or great bodily harm was a probable consequence of the act; and
(e) That the killing was unlawful.
The elements of aggravated assault, which is listed as a lesser-included offense of unpremeditated murder, para. 43d(2)(b), Part IV, Manual, supra, are:
54. Article 128 — Assault
4s 4: 4c sfc 4s 4s
[112]*112b. Elements
(4) Aggravated assault.
(a) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.
(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;
(ii) That the accused did so with a certain weapon ...;
(iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and
(iv) That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm; and [when a loaded firearm was used:]
(v) That the weapon was a loaded firearm.
Part IV, Manual, supra.
Clearly, aggravated assault is a lesser-included offense of unpremeditated murder. Additionally, the evidence sufficiently raised the issue of appellant’s intent, warranting the instruction. Cf. United States v. Waldron, 11 MJ 36, 38 n. 2 (CMA 1981) (Everett, C.J., concurring in the result). There is no per se rule against instructions and conviction on the lesser-included offense of assault when murder is charged. See United States v. Grey Bear, 883 F.2d 1382, 1386 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 846, 107 L.Ed.2d 840 (1990); cf. United States v. Davis, 2 USCMA 505, 511-12, 10 CMR 3, 9-10 (1953).
II
We would be remiss if we did not acknowledge that the guilty verdict to the charge of aggravated assault alone seems inconsistent in light of the fact that the victim’s death was undisputed at trial. For a conviction under Article 128, however, “[i]t is not necessary that death or grievous bodily harm be actually inflicted to prove assault with a dangerous weapon or means likely to produce grievous bodily harm.” Para. 54c(4)(a)(iv), Part IV, Manual, supra. Furthermore, the fact that appellant intentionally brandished a loaded firearm is virtually an express element of an offer-type aggravated assault. See para. 54b(4)(a)(v), Part IV, Manual, supra. Thus, a court-martial with members could rationally return a verdict of guilty to aggravated assault even though the victim was killed. Sansone v. United States, supra.
We follow the Supreme Court’s admonition that it is “imprudent and unworkable” to allow an accused
to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them.
United States v. Powell, 469 U.S. 57, 66, 105 S.Ct. 471, 477, 83 L.Ed.2d 461 (1984).
Ill
Accepting that aggravated assault was properly instructed upon as a lesser-included offense of unpremeditated murder, the question then becomes: In what order relative to the other lesser-included offenses, involuntary manslaughter and negligent homicide, should aggravated assault have been presented? 4
RCM 921(e)(5), Manual, supra, prescribes:
Members shall not vote on a lesser included offense unless a finding of not guilty of the offense charged has been reached. If a finding of not guilty of an offense charged has been reached the members shall vote on each included offense on which they have been in[113]*113structed, in order of severity beginning witk the most severe.
(Emphasis added.)
Prior to 1984, the Manual for Courts-Martial' was silent about the order in which members should vote upon lesser-included offenses. Although the present Manual prescribes that the members shall vote upon the offenses “in order of severity,” there is no indication whether “severity” means severity of punishment to the accused or severity of the elements of the offenses.
Also, before the 1984 Manual, the maximum punishment for all aggravated assaults by a means likely to produce death or grievous bodily harm was 3 years. See Table of Maximum Punishments, para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition) at 25-14 (Change 7), and Manual for Courts-Martial, United States, 1951, at 224. In 1984, however, for aggravated assaults committed with a loaded firearm, the President increased the punishment to 8 years. See para. 54e(8)(a), Part IV, 1984 Manual, supra. For reasons unknown to this Court, the President did not increase the punishment for involuntary manslaughter or negligent homicide when committed with a loaded firearm and, instead, chose for the maximum punishment to remain 3 years and 1 year, respectively, in all cases.
Congress has delegated to the President the power to establish sentences for crimes under Article 56 of the Uniform Code of Military Justice, 10 USC § 856, and has chosen not to override his decision as to how an aggravated assault shall be punished. Cf. Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Indeed, the same result has been reached by the Federal Sentencing Commission.5 Therefore, we see no error, and appellant has not alleged any, in the military judge's decision to instruct the members in the same order as the severity of the punishment which appellant would suffer.
We are satisfied that the Government was entitled to the instruction on the lesser-included offense. Accordingly, there was no error as to findings. The Government’s concession, which we have declined to accept, may nevertheless persuade the Court of Military Review to conclude that appellant’s sentence is too severe. We will give them the opportunity to take another look at the appropriateness of the sentence.
The decision of the United States Air Force Court of Military Review is affirmed as to findings and is set aside as to the sentence. The record of trial is returned to the Judge Advocate General of the Air Force for submission to that court for further review of the sentence.