NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM. For this offense, the confinement category is dependent on the underlying offense.

NOTE 2. Elements of principal’s offense. Here, the members must be instructed on the elements of the offense allegedly committed by the principal. The instructions given should be those setting forth the elements of the pertinent offense and should be carefully tailored to include such factors as value, amount, or other essential ingredients which might affect the maximum punishment.

NOTE 3. Principal offense housebreaking or burglary. In cases in which the offense alleged to have been committed by the principal is burglary or housebreaking, the members should be advised as to the relevant elements of the particular offense or offenses which the evidence indicates the principal may have intended to commit inside the house, building, or structure involved.

NOTE 4. Maximum punishment for principal offense affected by value. If the offense committed by the principal is one for which the maximum punishment is graduated according to the value of the property, damage, or amount involved, and if the allegations and evidence will support a finding as to specific value, damage, or amount, the element(s) of the instruction should be phrased so as to set out that value, damage, or amount. For example, if the offense committed by the principal is larceny, element 1 of the instruction should state: “That larceny, an offense punishable by the Uniform Code of Military Justice, of property of a value of (state the value alleged) was committed by (state the name of the principal) at (state the time and place alleged).” Offenses other than larceny and wrongful appropriation which require similar modification of the instruction include: obtaining services by false pretenses (Article 121b), fraud against the United States (Article 124), knowingly receiving stolen property (Article 122a), and other offenses in violation of Articles 108, 108a, 109, and 123a. When value, damage, or amount is in issue an instruction in accordance with Instruction 7-16, Variance - Value, Damage, or Amount, should be given.

NOTE 5. Conviction of the principal not required. Conviction of the principal of the offense to which the accused is allegedly an accessory after the fact is not a prerequisite to the trial of the accused. Furthermore, evidence of the acquittal or conviction of the principal in a separate trial is not admissible to show that the principal did or did not commit the offense. An accused may be convicted as an accessory after the fact despite the acquittal, in a separate trial, of the principal the accused allegedly comforted, received, or assisted.