UCMJ Article 79: Conviction of Offense Charged, Lesser Included Offenses, and Attempts
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Article 79 is not an offense. It tells a court-martial what it may find an accused guilty of: the offense charged, a lesser included offense, an attempt to commit the offense charged, or an attempt to commit a lesser included offense if that attempt is itself an offense. A lesser included offense is either one “necessarily included” in the charged offense by its elements, or one the President has designated by regulation, listed in Appendix 12A of the Manual.
Four findings a court-martial may return
Under 10 U.S.C. § 879(a), an accused may be found guilty of:
- the offense charged;
- a lesser included offense;
- an attempt to commit the offense charged; or
- an attempt to commit a lesser included offense, if the attempt is an offense in its own right.
Section 879(b) defines a lesser included offense as one “necessarily included in the offense charged,” and “any lesser included offense so designated by regulation prescribed by the President.” Under § 879(c), a designated offense “shall be reasonably included in the greater offense.”
Two independent routes
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 3.c(1), describes the two subsections of § 879(b) as separate bases for giving the accused notice of a lesser offense.
Necessarily included (¶ 3.c(2)). An offense is necessarily included when its elements are a subset of the charged offense’s elements. The Manual gives three patterns, each with an example:
| Pattern | Example |
|---|---|
| All elements of the lesser offense are in the greater, and the common elements are identical | Wrongful appropriation as included in larceny |
| All elements are included, but one element is legally less serious | Unlawful entry as included in burglary |
| All elements are included, but the mental element is legally less serious | Voluntary manslaughter as included in premeditated murder |
Designated by the President (¶ 3.c(3)). Appendix 12A lists the designated lesser included offenses. The President may list a necessarily included offense but need not; a court can still find an offense necessarily included even if it is not on the list.
Where it is uncertain whether an offense is included, the Manual points to R.C.M. 307(c)(3) on charging in the alternative.
Instructions and findings
- Instructions. Subject to R.C.M. 920(g), a military judge “must instruct panel members on lesser included offenses reasonably raised by the evidence” (¶ 3.c(4)).
- Compound offenses. When the charged offense comprises two or more lesser included offenses, the accused may be found guilty of any or all of them (¶ 3.c(5)).
- Exceptions and substitutions. The court-martial finds a lesser included offense by excepting words from the specification and substituting others. The Manual’s example: an accused charged with murder under Article 118 is found guilty, by exception and substitution, of willfully and unlawfully killing, and of the charge, “Not guilty, but guilty of a violation of Article 119.” The finding names the specific punitive article violated, “and not a violation of Article 79” (¶ 3.c(6)).
The sentence follows the offense found
Article 79 has no maximum of its own. A conviction of a lesser included offense carries that offense’s maximum: unlawful entry instead of burglary, voluntary manslaughter instead of murder. A conviction of an attempt is governed by Article 80, which also allows an attempt conviction “although it appears on the trial that the offense was consummated.”
The pairs above link to their own pages: larceny and wrongful appropriation under Article 121, burglary and unlawful entry under Article 129, and murder under Article 118.
Sources
- 10 U.S.C. § 879, Article 79, Conviction of offense charged, lesser included offenses, and attempts (Cornell LII)
- 10 U.S.C. § 880, Article 80, Attempts (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 3; Appendix 12A
General information about military law, not legal advice for any individual case.