b. That grievous bodily harm was thereby inflicted upon such person;
c. That the grievous bodily harm was done with unlawful force or violence; and
d. That the accused, at the time, had the specific intent to inflict grievous bodily harm.
NOTE: When a loaded firearm is used, that fact may again be included as an element in aggravation.
When grievous bodily harm has been inflicted by means of intentionally using force in a manner
likely to achieve that result, it may be inferred that grievous bodily harm was intended. One example of
this would be intentionally knocking a person off of a high level of a grandstand, so that the resulting
fall breaks his leg. This would constitute an aggravated assault intentionally inflicting grievous bodily
harm because the end result (the broken leg) is a very foreseeable result of pushing someone off of such
a grandstand. That inference might not be drawn if a person struck another with a fist in a sidewalk
fight and the victim fractured his skull by falling and striking his head against a curb. Part IV, MCM
1984, para 54(c) (4) (b) (ii).
Normally, a fist would not be a "means likely" to produce grievous bodily harm. However, if a
victim is held by one or several assailants while the others beat the victim with their fists and ultimately
break the victim's nose, jaw, or rib, we may infer that the injury was intentionally brought about due to
the viciousness of the attack. Part IV, MCM 1984, para 54(c) (4) (b) (ii). Also, the accused was
convicted of aggravated assault with a means or force likely when he struck the victim, a German cab
driver, in the head knocking him to the floor. Thereafter, the accused punched the victim 8 to 13 times
in the head thereby aiding in escaping from the cab driver without paying the fare. Even though the cab
driver's injuries were minor and he required no medical treatment, the ACMR found under the
circumstances the accused's fists constituted a means or force likely to inflict death or grievous bodily
harm. US vs. Whitfield, 35 MJ 535 (ACMR 1992). Therefore, how the accused uses his fists,
especially when the victim is unable to avoid being hit, and where the accused punches, i.e., in the head,
will impact the finding of fists as a means or force likely to inflict grievous bodily harm.
3. Assaults on those with a particular status. Under Articles 90, 91, and 128, UCMJ,
the maximum permissible punishment for certain assaults is increased when the victim has a
particular status or is performing a special function at the time of the assault. Such assaults
include: assault upon a commissioned, warrant, noncommissioned, or petty officer; assault upon
a sentinel or lookout in the execution of duty or upon a person in the execution of law
enforcement duties; and finally, assault consummated by a battery upon a child under 16 years.
In situations involving assaults upon officers, noncommissioned officers, sentinels, and those in
law enforcement, the government must prove the accused specifically knew that the victim
enjoyed the status in question. However, in the case of assault consummated by a