§ Article 79 : Conviction of Offense Charged, Lesser Included Offenses, and Attempts

Article 79 of the UCMJ (10 U.S.C. § 879) does not define a crime. It governs what a court-martial may lawfully convict an accused of: the offense actually charged, a lesser offense necessarily included within it, or an attempt to commit either one, even though only the greater offense was charged.

Who It Applies To

Article 79 does not define an offense and is not charged on its own. It governs what a court-martial may find an accused guilty of, in every court-martial.

What It Covers

An accused may be found guilty of:

1. The offense charged.
2. A lesser included offense of the offense charged.
3. An attempt to commit the offense charged.
4. An attempt to commit a lesser included offense, if the attempt is an offense in its own right.

Article 79 defines a “lesser included offense” in two independent ways:

• an offense necessarily included in the offense charged; and
• an offense designated as a lesser included offense by the President, by regulation. The Manual lists these designations in Appendix 12A, and any designated offense must be reasonably included in the greater offense.

Under the Manual, an offense is necessarily included when all of its elements are included in the greater offense and either the common elements are identical (for example, wrongful appropriation as a lesser included offense of larceny), at least one element is a legally less serious form of an element of the greater offense (for example, unlawful entry as a lesser included offense of burglary), or its mental element is a legally less serious form of the greater offense’s mental element (for example, voluntary manslaughter as a lesser included offense of premeditated murder). A court may treat an offense as necessarily included whether or not the President has also designated it.

A military judge must instruct court members on lesser included offenses reasonably raised by the evidence.

Maximum Punishment

Maximum authorized punishment. Article 79 has no punishment of its own. The maximum is the one authorized for the offense of which the accused is actually found guilty — the offense charged, a lesser included offense, or an attempt.

Sentencing parameters. Article 79 is classified as “dependent on underlying offense.”

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 79 works with Article 80: a finding of guilty of an attempt to commit the charged offense or a lesser included offense rests on both articles. It differs from Article 77, which addresses who is responsible for an offense rather than which offense a finding may rest on.

What the Provision Does

Article 79 does not define a crime. It allows a court-martial to find an accused guilty of a lesser offense necessarily included in the offense charged, or of an attempt to commit either, without a separate charge for that lesser offense or attempt.

Sources

• 10 U.S.C. § 879 (Article 79, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 3
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12A