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 of the Uniform Code of Military Justice (10 U.S.C. § 877) does not create a criminal offense. It establishes a liability framework. Its function is to make clear that a service member need not personally commit every act constituting a crime in order to be convicted and punished for it. A person who aids, abets, counsels, commands, or procures the commission of an offense, or who causes an act to be done that would be criminal if performed directly, is a principal. Same charge. Same maximum punishment. No discount for indirect participation.
The statute draws no sentencing distinction between the person who pulls the trigger and the person who handed over the weapon knowing what would follow.
How Principal Liability Works
The MCM 2024, Part IV, Paragraph 1 identifies two paths to principal liability.
The first is straightforward: the accused personally commits a punishable offense, or aids, abets, counsels, commands, or procures its commission. This covers both the direct perpetrator and what other legal systems call the accomplice. Under Article 77, military law eliminates that distinction. Both are principals. Both face the same exposure.
The second path addresses causation: the accused causes an act to be done that, if performed by the accused directly, would be punishable under the UCMJ. This covers situations where someone uses an innocent or unknowing agent, ordering a subordinate to perform an act the subordinate does not realize is criminal, for instance, or manipulating circumstances so that another person unknowingly carries out the offense.
For aiding and abetting specifically, the CAAF has identified four elements the prosecution must establish. As articulated in United States v. Vela, 71 M.J. 283, and reaffirmed in United States v. Mitchell, 66 M.J. 176: (1) specific intent to facilitate the commission of the crime, (2) guilty knowledge that an offense was being committed, (3) that an offense was in fact being committed by someone, and (4) that the accused assisted or participated in its commission. Intent may be inferred from circumstances, no direct evidence of a spoken agreement is required.
The threshold for “assistance” is lower than many service members expect. In United States v. Thompson, 50 M.J. 57, the CAAF upheld a rape conviction under principal liability where the accused had participated in getting the victim intoxicated, knew another person intended to have intercourse with the victim, failed to dissuade the act when looked to for approval, and provided a condom. No physical force by the accused. No direct commission of the sexual act. The cumulative conduct was sufficient.
But there is a floor. Mere presence at the scene of a crime does not, by itself, establish principal liability (MCM 2024, Part IV, Paragraph 1.b(3)(b)). As the Court of Military Appeals clarified in United States v. Pritchett, 31 M.J. 213, presence may be considered as one factor, but the prosecution must show something more, some affirmative step associating the accused with the criminal venture. Watching a crime happen is not the same as participating in it, unless the accused had a legal duty to intervene.
Natural and Probable Consequences
A principal is criminally liable not only for the intended offense but for all offenses likely to result as a natural and probable consequence of the criminal venture. This doctrine extends liability beyond the specific crime planned.
If two service members agree to commit a robbery and one of them assaults the victim during the robbery, both may face liability for the assault, even if only one committed it, because assault during a robbery is a foreseeable outcome of the planned conduct. The question is foreseeability, not intent for the secondary offense.
This principle intersects directly with conspiracy under Article 81. In United States v. Browning, 54 M.J. 1, the CAAF held that a co-conspirator may be held criminally responsible under vicarious liability through Article 77, even though Article 77 does not explicitly address co-conspirator liability and even if the theory is not specifically alleged in the charges. The Pinkerton doctrine, holding conspirators liable for foreseeable crimes committed by co-conspirators in furtherance of the conspiracy, operates through the principal liability framework that Article 77 provides.
The practical effect: a service member who joins a conspiracy may face criminal responsibility for acts committed by co-conspirators that the accused never planned, never knew about, and never directly facilitated, so long as those acts were foreseeable consequences of the agreed-upon criminal objective.
What Article 77 Means in Practice
Because Article 77 is a liability theory rather than a standalone offense, it does not carry its own elements, its own maximum punishment, or its own statute of limitations. Punishment for a principal tracks the punishment for the underlying offense. The jurisdiction tracks the underlying offense. The statute of limitations tracks the underlying offense. Article 77 simply determines who can be held accountable, it expands the net of criminal liability beyond the person whose hands directly performed the prohibited act.
This matters across virtually every punitive article in the UCMJ. When Article 80 (Attempts) charges a service member with attempting an offense, Article 77 determines whether someone who assisted that attempt is equally liable. When Article 81 (Conspiracy) establishes that an agreement existed, Article 77’s natural-and-probable-consequences doctrine determines how far criminal responsibility extends for acts committed in furtherance of that conspiracy. When any substantive offense, from larceny under Article 121 to assault under Article 128, is charged, Article 77 governs whether someone who encouraged, facilitated, or commanded the act faces the same conviction.
Article 78 (Accessory After the Fact) draws the boundary on the other side. Article 77 addresses those who participate before or during an offense. Article 78 addresses those who assist after the offense is complete, harboring, concealing, or helping the offender avoid detection. The distinction is temporal: principal liability attaches to involvement in the crime itself, while accessory liability attaches to involvement in its aftermath. The punishment exposure differs significantly, accessories after the fact face reduced maximum punishment, not the full penalty of the underlying offense.
For service members, the core takeaway is structural. The military justice system does not reserve criminal liability for the person who committed the final act. Anyone who facilitated, encouraged, commanded, or set the offense in motion faces the same charge and the same maximum sentence. Article 77 ensures that the question is not who held the weapon, but who made the crime possible.
Joseph L. Jordan, Attorney at Law: Article 77 is not a standalone criminal charge. It is the UCMJ’s principal liability framework, holding anyone who aids, abets, counsels, commands, or procures the commission of an offense equally liable as the person who directly committed it. Same charge, same maximum punishment.
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.