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.
When a court-martial acquits on the charged offense, the case does not necessarily end. Article 79 of the UCMJ (10 U.S.C. § 879) defines the scope of what a panel may still convict on, without additional charges ever being filed. It governs lesser included offenses, and it determines the boundaries of a conviction that falls short of the original charge but still carries criminal consequences.
Like Article 77 (Principals), Article 79 is not itself a chargeable offense. It is a procedural framework. No one is “charged with violating Article 79.” Instead, Article 79 establishes the rules under which a court-martial can find an accused guilty of a less serious offense than the one originally charged, or of an attempt to commit either the charged offense or one of its lesser included offenses.
The Military Justice Act of 2016 reshaped how this works. Before that reform, effective January 1, 2019, Article 79 relied solely on a single test. The current version creates two independent paths to a lesser included offense, and the distinction matters.
The Elements Test and the Enumerated List
Under the current Article 79, a lesser included offense means one of two things. The MCM 2024 (Part IV, Paragraph 3) establishes the framework for lesser included offenses, working in conjunction with the President’s enumerated list in Appendix 12A.
The first path is the elements test, the traditional approach. An offense is “necessarily included” in the charged offense when every element of the lesser offense is also an element of the greater offense. The lesser offense is a subset. Nothing in the lesser offense falls outside what the greater offense already alleges. The CAAF confirmed this framework in United States v. Armstrong, 77 M.J. 465: the accused has notice of a necessarily included offense because its elements are contained within the elements of the charge the accused is already defending against.
The practical example: a service member charged with robbery under Article 122 (which requires a taking by force or violence) could be convicted of larceny under Article 121 (which requires a taking but not force) as a lesser included offense, because every element of larceny exists within the elements of robbery. Remove the force element, and larceny remains.
The second path is the one the MJA 2016 created. The President may designate additional lesser included offenses by regulation, provided they are “reasonably included” in the greater offense (Article 79(b)(2)). Appendix 12A of the MCM 2024 lists these presidentially prescribed LIOs. This path expanded the LIO landscape beyond what the strict elements test alone would permit. An offense that might fail the elements test, because it contains an element not technically present in the greater offense, can still qualify as a lesser included offense if the President has designated it in Appendix 12A.
Both paths operate independently. Either one is sufficient. A military judge determining available LIOs checks the elements test first, then checks Appendix 12A. If the offense qualifies under either path, it may be presented to the panel as an alternative finding.
What the Panel Can Convict On
Article 79 authorizes four possible outcomes at trial:
The offense as charged. The panel finds all elements of the charged offense proven beyond a reasonable doubt.
A lesser included offense. The panel finds the accused not guilty of the charged offense but guilty of an LIO, whether identified through the elements test or through Appendix 12A.
An attempt to commit the charged offense. Under Article 80, the attempt is itself a lesser included offense of the completed crime (Article 80(c)). If the panel finds the accused took a substantial step toward the charged offense but did not complete it, an attempt conviction is available.
An attempt to commit a lesser included offense. The most granular option, the panel finds neither the completed charged offense nor the completed LIO, but finds the accused attempted the lesser offense.
The maximum punishment for any LIO conviction tracks that lesser offense’s own punishment provisions, not the punishment for the greater offense originally charged. A conviction for larceny as an LIO of robbery carries larceny’s maximum punishment, not robbery’s.
Why the Elements Test Is Not Always Intuitive
When Elements Don’t Nest
The elements test sounds mechanical, but its application has produced outcomes that challenge assumptions.
In United States v. Riggins, 75 M.J. 78, the CAAF held that assault consummated by a battery under Article 128 was not a lesser included offense of the sexual assault charges under Article 120. The charged offenses required proof that the accused placed the victim in fear through abuse of military position, an element that simple assault does not contain, and whose removal does not leave a clean subset. Elements did not nest, so the LIO path failed.
This is why Appendix 12A matters. Presidentially prescribed designations can capture offense relationships that the elements test misses, relationships that are doctrinally reasonable even if the elements do not perfectly subset. The CAAF has been clear, however, that the President’s designations must be “reasonably included” in the greater offense. But the authority is not unlimited.
One additional complexity: the MCM’s historical listing of LIOs under individual articles was not always accurate. As the CAAF noted in Armstrong, the MCM’s listing is persuasive but not controlling. An error in the MCM’s LIO list does not automatically make an offense a valid LIO, nor does omission from the list mean an offense fails the elements test. The elements themselves govern.
For service members and those navigating the military justice system, Article 79 means that the charge sheet does not fully define the range of possible convictions. Every charged offense carries with it a set of lesser alternatives, some obvious from the elements, some prescribed by the President in Appendix 12A. that the panel may reach without any additional charging action. The scope of exposure at trial is always broader than the face of the charge.
Joseph L. Jordan, Attorney at Law: Article 79 is a procedural framework, not a chargeable offense. It allows a court-martial panel to convict on a less serious offense than the one originally charged, even if the lesser offense was never separately filed. The MJA 2016 created two independent paths to lesser included offenses.
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.