Opinion of the Court
EVERETT, Chief Judge:
The appellant was tried by special court-martial with military judge alone on charges of attempted rape under Article 80, and assault with intent to rape, under Article 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 934, respectively. Upon conviction of both offenses, the military judge sentenced appellant to a bad-conduct discharge, 6 months’ confinement, and partial forfeitures; but he recommended that the discharge be suspended. This recommendation was not accepted by [436]*436the convening authority, who approved both the findings and the sentence as adjudged. In turn, the supervisory authority approved, and the United States Navy Court of Military Review affirmed these results.
We granted review to consider this issue:
IN VIEW OF THE SIMILARITY OF ALLEGATION IN THE TWO CHARGES, SHOULD THE MILITARY JUDGE OR APPELLATE AUTHORITIES HAVE DISMISSED ONE OF THE CHARGES?
Upon consideration of the pleadings and the proof in light of the rationale expressed in United States v. Hobbs, 7 U.S.C.M.A. 693, 23 C.M.R. 157 (1957), we conclude that the two specifications allege essentially the same offense and that one of the findings of guilt must be set aside and the related charge dismissed.
I
On February 3, 1978, the appellant — a seventeen-year-old sailor who had enlisted in the Navy a few months before — and another sailor were assigned to a room then occupied by YNSN Richard Walters. Walters had a girl friend, also a member of the Naval service, who, after attending a farewell party at a bar on the evening of February 3rd, repaired to Walters’ room in violation of regulations. Subsequently she undressed and joined him in bed, where, unclothed and asleep, she was lying under a blanket around 2:30 a.m. when Gibson— who then seemed “drunk” or “sedated” — returned to the room and prepared for bed.
Aside from a casual encounter at the bar earlier in the evening, when he had audibly admired her physical attributes, appellant previously had enjoyed no acquaintance with Walters’ girl friend. Nonetheless— perhaps impelled by heavy ingestion of alcohol earlier in the evening and by viewing an X-rated film — appellant crawled into the bunk with her when Walters left the room a few minutes after Gibson’s arrival. Appellant’s ensuing efforts to induce her participation in sexual intercourse proved unavailing; and his persistence in this enterprise, despite her refusal, gave rise to the charges preferred against him. Ironically, appellant was the only person who suffered physical harm that evening, his injuries being inflicted by Walters, who had returned to the room and been apprised of appellant’s amorous endeavors.
The identical overt acts were alleged for both the attempt and the assault. Thus, the specification of the first charge alleged that the appellant
did [at a specified time and place] attempt to rape [his named victim] by climbing into bed with [the victim], by turning her from her stomach to her back, climbing on top of her, caressing her sides with his hands, placing his hand over her mouth and attempting to insert his penis into her vagina.
Similarly, the specification laid under the second charge alleged that the appellant
did [at the same time and place] with intent to commit rape, commit an assault upon [the same named victim] by climbing into bed with [the victim], by turning her from her stomach to her back, climbing on top of her, caressing her sides with his hands, placing his hand over her mouth and attempting to insert his penis into her vagina.
At trial, the defense counsel contested on grounds of intoxication the specific intent required by each charge and argued that appellant had desisted from his efforts at intercourse as soon as, in his then befuddled condition, he had realized that his roommate’s girl friend was not inclined to have intercourse with him. The military judge nonetheless found appellant guilty on each charge. Thereupon, on his own motion, he found the charges multiplicious for sentencing purposes. However, the judge did not dismiss either charge, nor was he requested to do do by defense counsel.
II
The language of Article 128 of the Uniform Code, 10 U.S.C. § 928, which defines assault in terms of an attempt or offer with unlawful force to do bodily harm to another person makes clear the intimate relation[437]*437ship between attempts and assaults.1 Thus, although in United States v. Hobbs, supra, there were three separate opinions, all the Judges apparently were of the same mind that, where the specification alleges and the proof reflects that an assault on the intended rape victim was the overt act required for an attempt to rape, then the two offenses are the same. As stated in the principal opinion in Hobbs:
Assault with intent to commit rape consists of an attempt or offer with unlawful force and violence to do bodily harm to another, accompanied by a specific intent to commit rape. Manual for Courts-Martial ... [United States, 1951], paragraph 213d(l)(c), page 385. When that crime is compared with the offense of attempted rape, it is at once apparent that the sexual intent is the same in both instances, and that the overt act required for the latter may well consist of an assault. Many courts have had difficulty distinguishing the two offenses, and “there is authority that every assault with intent to rape is an attempt, but that the converse does not follow.” 75 CJS, Rape, § 21, page 488. Paragraph 213d[l), page 384, of the Manual clearly suggests that, in general, “An assault with intent to commit an offense is not necessarily the equivalent of an attempt to commit the intended offense.” However sound this may be in the case of other intended offenses (See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 296, for illustration), it is difficult indeed to conjure up a hypothetical situation to support this where the intended offense is rape.
Id. at 698, 23 C.M.R. at 162. The validity of this view expressed in Hobbs remains unimpaired.
Moreover, under principles enunciated by the Supreme Court, offenses should be treated as the same when, in light of the allegations, the proof of one necessarily requires proof of the other. Cf. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In any event, no increase in punishment should be allowed under such circumstances. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).
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Opinion of the Court
EVERETT, Chief Judge:
The appellant was tried by special court-martial with military judge alone on charges of attempted rape under Article 80, and assault with intent to rape, under Article 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 934, respectively. Upon conviction of both offenses, the military judge sentenced appellant to a bad-conduct discharge, 6 months’ confinement, and partial forfeitures; but he recommended that the discharge be suspended. This recommendation was not accepted by [436]*436the convening authority, who approved both the findings and the sentence as adjudged. In turn, the supervisory authority approved, and the United States Navy Court of Military Review affirmed these results.
We granted review to consider this issue:
IN VIEW OF THE SIMILARITY OF ALLEGATION IN THE TWO CHARGES, SHOULD THE MILITARY JUDGE OR APPELLATE AUTHORITIES HAVE DISMISSED ONE OF THE CHARGES?
Upon consideration of the pleadings and the proof in light of the rationale expressed in United States v. Hobbs, 7 U.S.C.M.A. 693, 23 C.M.R. 157 (1957), we conclude that the two specifications allege essentially the same offense and that one of the findings of guilt must be set aside and the related charge dismissed.
I
On February 3, 1978, the appellant — a seventeen-year-old sailor who had enlisted in the Navy a few months before — and another sailor were assigned to a room then occupied by YNSN Richard Walters. Walters had a girl friend, also a member of the Naval service, who, after attending a farewell party at a bar on the evening of February 3rd, repaired to Walters’ room in violation of regulations. Subsequently she undressed and joined him in bed, where, unclothed and asleep, she was lying under a blanket around 2:30 a.m. when Gibson— who then seemed “drunk” or “sedated” — returned to the room and prepared for bed.
Aside from a casual encounter at the bar earlier in the evening, when he had audibly admired her physical attributes, appellant previously had enjoyed no acquaintance with Walters’ girl friend. Nonetheless— perhaps impelled by heavy ingestion of alcohol earlier in the evening and by viewing an X-rated film — appellant crawled into the bunk with her when Walters left the room a few minutes after Gibson’s arrival. Appellant’s ensuing efforts to induce her participation in sexual intercourse proved unavailing; and his persistence in this enterprise, despite her refusal, gave rise to the charges preferred against him. Ironically, appellant was the only person who suffered physical harm that evening, his injuries being inflicted by Walters, who had returned to the room and been apprised of appellant’s amorous endeavors.
The identical overt acts were alleged for both the attempt and the assault. Thus, the specification of the first charge alleged that the appellant
did [at a specified time and place] attempt to rape [his named victim] by climbing into bed with [the victim], by turning her from her stomach to her back, climbing on top of her, caressing her sides with his hands, placing his hand over her mouth and attempting to insert his penis into her vagina.
Similarly, the specification laid under the second charge alleged that the appellant
did [at the same time and place] with intent to commit rape, commit an assault upon [the same named victim] by climbing into bed with [the victim], by turning her from her stomach to her back, climbing on top of her, caressing her sides with his hands, placing his hand over her mouth and attempting to insert his penis into her vagina.
At trial, the defense counsel contested on grounds of intoxication the specific intent required by each charge and argued that appellant had desisted from his efforts at intercourse as soon as, in his then befuddled condition, he had realized that his roommate’s girl friend was not inclined to have intercourse with him. The military judge nonetheless found appellant guilty on each charge. Thereupon, on his own motion, he found the charges multiplicious for sentencing purposes. However, the judge did not dismiss either charge, nor was he requested to do do by defense counsel.
II
The language of Article 128 of the Uniform Code, 10 U.S.C. § 928, which defines assault in terms of an attempt or offer with unlawful force to do bodily harm to another person makes clear the intimate relation[437]*437ship between attempts and assaults.1 Thus, although in United States v. Hobbs, supra, there were three separate opinions, all the Judges apparently were of the same mind that, where the specification alleges and the proof reflects that an assault on the intended rape victim was the overt act required for an attempt to rape, then the two offenses are the same. As stated in the principal opinion in Hobbs:
Assault with intent to commit rape consists of an attempt or offer with unlawful force and violence to do bodily harm to another, accompanied by a specific intent to commit rape. Manual for Courts-Martial ... [United States, 1951], paragraph 213d(l)(c), page 385. When that crime is compared with the offense of attempted rape, it is at once apparent that the sexual intent is the same in both instances, and that the overt act required for the latter may well consist of an assault. Many courts have had difficulty distinguishing the two offenses, and “there is authority that every assault with intent to rape is an attempt, but that the converse does not follow.” 75 CJS, Rape, § 21, page 488. Paragraph 213d[l), page 384, of the Manual clearly suggests that, in general, “An assault with intent to commit an offense is not necessarily the equivalent of an attempt to commit the intended offense.” However sound this may be in the case of other intended offenses (See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 296, for illustration), it is difficult indeed to conjure up a hypothetical situation to support this where the intended offense is rape.
Id. at 698, 23 C.M.R. at 162. The validity of this view expressed in Hobbs remains unimpaired.
Moreover, under principles enunciated by the Supreme Court, offenses should be treated as the same when, in light of the allegations, the proof of one necessarily requires proof of the other. Cf. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In any event, no increase in punishment should be allowed under such circumstances. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).
The Government now contends that, by treating the two charges as multiplicious for sentencing purposes, the military judge protected the appellant from any prejudice resulting from the repetitious charging of what constituted a single offense. Juxtaposition of the jurisdictional limitations applicable to the special court-martial which tried appellant against the maximum punishments imposable for either of these offenses tends to support the government’s position. However, to accept this argument would ignore the unusual circumstances which, along with the appellant’s youth, undoubtedly induced the military judge to recommend in the case at bar that suspension of the punitive discharge be considered. Typically a sentencing authority, among other things, is concerned with general deterrence. Cf. United States v. Lania, 9 M.J. 100 (1980). In this regard he will take into account the impact of a proposed sentence on those persons whom he wishes to deter from committing similar offenses. Accordingly, when a sentence is imposed for what purports to be two separate and serious crimes — even though the trained legal mind may recognize that they are one and the same — there will be some tendency to be more severe than if clearly there is to be only a single offense to be punished. With such factors in mind, we are not convinced by our review of the record that the military judge would have adjudged the same sentence even if one of the two charges had been dismissed.
[438]*438III
The confinement has been served long ago, so we shall focus on the bad-conduct discharge, as to which remedial action remains available. Accordingly, the decision of the United States Navy Court of Military Review is reversed. The record is returned to the Judge Advocate General of the Navy for remand to the Court of Military Review, which shall set aside the findings as to one of the two charges of which the appellant was convicted and dismiss that charge. In addition, that court shall either set aside the bad-conduct discharge or order a rehearing on the sentence.
Judge FLETCHER concurs.