ART. 128. ASSAULT
(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.
(b) Any person subject to this chapter who--
(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or
(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon;
is guilty of aggravated assault and shall be punished as a court-martial may direct.
I anticipated this argument and did my homework before I decided that West was wrong. Intent may play a role in a civilian jurisdiction, but in the UCMJ, it clearly does not.
LTC West made no such attempt. He had no intent to attempt any bodily harm. He will testify he fired into the disposal barrel and would not have done anything else had the bluff failed. If the standard of reasonable liklihood to win a conviction beyond a reasonable doubt were used, the usual standard to decide whether to bring charges, this charge should not have been brought.