This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
Article 77 asks who participated in the crime. Article 78 asks a different question: who helped the offender get away with it afterward?
The line between the two is temporal. A principal under Article 77 acts before or during the offense. An accessory after the fact under Article 78 (10 U.S.C. § 878) acts after the offense is already complete, receiving, comforting, or assisting the offender with the specific purpose of obstructing apprehension, trial, or punishment. Unlike Article 77, which is a liability theory applied to other charges, Article 78 is a standalone offense with its own elements, its own punishment framework, and its own strategic significance in military prosecutions.
Knowledge Is the Dividing Line
The MCM 2024, Part IV, Paragraph 2 sets out four elements:
- That an offense punishable by the UCMJ was committed by a certain person.
- That the accused knew that this person had committed such offense.
- That thereafter the accused received, comforted, or assisted the offender.
- That the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender.
Every element carries weight, but the second one, knowledge, is where most contested cases turn.
The standard is actual knowledge. The accused must have known that a specific offense had been committed. Suspicion does not qualify. Rumors do not qualify. A vague sense that “something happened” does not satisfy the element. The prosecution must prove the accused knew the nature of the criminal conduct, not just that trouble existed, but that a particular UCMJ violation had occurred. Prosecutors frequently establish this through circumstantial evidence: statements the accused made, timing of the assistance, the accused’s relationship to the offender, and what information was available at the time.
The fourth element narrows liability further. The assistance must be purposeful, specifically intended to help the offender avoid legal consequences. Incidental benefit does not count. If a service member gives a friend a ride home without knowing the friend just committed a crime, or without intending to help the friend evade investigation, Article 78 does not apply. The question is whether the accused acted with the purpose of obstruction, not whether the assistance happened to be useful.
One boundary the MCM draws explicitly: the failure to report an offense does not, standing alone, make a person an accessory after the fact (MCM 2024, Part IV, Paragraph 2.c). Silence is not assistance. Knowing about a crime and choosing not to come forward may raise other issues, potential violations of specific reporting regulations under Article 92, for instance, but it does not satisfy Article 78’s elements. The statute requires affirmative conduct: receiving, comforting, or assisting.
Punishment Framework
The maximum punishment tracks the underlying offense, but with three caps that distinguish Article 78 from principal liability under Article 77.
First, the death penalty is never authorized for an accessory after the fact, regardless of how severe the underlying offense. Second, confinement may not exceed one-half of the maximum confinement authorized for the principal offense. Third, in cases where the underlying offense carries life imprisonment, the accessory’s confinement may not exceed ten years.
These caps reflect the statute’s recognition that post-offense assistance, while criminal, is categorically less culpable than participation in the crime itself. A service member convicted of being an accessory after the fact to a murder does not face murder-level confinement. The exposure is significant, up to ten years, but it is bounded.
Other punitive measures, dishonorable discharge, total forfeiture of pay and allowances, reduction to the lowest enlisted grade, may still apply depending on the specific circumstances and the severity of the underlying offense.
Where the Boundaries Get Tested
Several characteristics of Article 78 create practical complexities worth understanding.
The principal does not need to be convicted
The prosecution must prove that a UCMJ offense was committed, but it does not need to prove that the principal offender was convicted, or even charged. An accessory after the fact can be found guilty even if the person who committed the underlying crime is acquitted in a separate proceeding. The two cases are independent. What matters for Article 78 is whether the offense occurred and whether the accused knowingly assisted the offender.
Accessory after the fact is not a lesser included offense of the underlying crime
It must be charged separately (United States v. Price, 34 C.M.R. 516). This means a service member charged with committing an offense cannot be found guilty of being an accessory to that same offense as a fallback. The two charges address fundamentally different conduct, participation versus post-offense assistance.
The timing question can be fact-dependent
Some offenses are continuing in nature. Larceny, for example, continues as long as the offender retains possession of stolen property. Assistance provided while a continuing offense is still in progress may constitute principal liability under Article 77 rather than accessory liability under Article 78. The distinction depends on whether the underlying offense was complete at the time the assistance was rendered. When a conspiracy calls for post-offense concealment as part of the plan, participants in that concealment may face conspiracy charges under Article 81 rather than, or in addition to, accessory charges under Article 78.
The distinction from misprision
Article 134 includes the offense of misprision of a serious offense, concealing knowledge of a felony-level crime without reporting it to appropriate authorities. Misprision requires a serious offense (one punishable by confinement of more than one year), while Article 78 applies to any UCMJ offense. Misprision focuses on the failure to disclose; Article 78 focuses on affirmative assistance. A service member who merely stays silent may face misprision. A service member who actively helps the offender avoid detection faces Article 78.
At its core, Article 78 is straightforward: helping someone escape justice after a crime is itself a crime. Knowledge and purpose requirements set the floor. Punishment caps set the ceiling. Between those boundaries, the statute holds service members accountable not just for what they do, but for who they protect and why.
Joseph L. Jordan, Attorney at Law: Article 78 criminalizes assisting an offender after a UCMJ offense is complete. Anyone who receives, comforts, or assists the offender to hinder apprehension, trial, or punishment faces a standalone charge with a maximum sentence capped at half the penalty for the underlying offense.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.