Part IV · Punitive Articles

Article 79. Conviction of offense charged, Lesser included offenses, and attempts · MCM ¶ 3

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute.
(a) IN GENERAL.—An accused may be found guilty of any of the following:
(1) The offense charged.
(2) A lesser included offense.
(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.
(b) LESSER INCLUDED OFFENSE DEFINED.— In this section (article), the term “lesser included offense” means—
(1) an offense that is necessarily included in the offense charged; and
(2) any lesser included offense so designated by regulation prescribed by the President. (c) REGULATORY AUTHORITY.—Any designation of a lesser included offense in a regulation referred to in subsection (b) shall be reasonably included in the greater offense.
(c) REGULATORY AUTHORITY.—Any designation of a lesser included offense in a regulation referred to in subsection (b) shall be reasonably included in the greater offense.
(b) Explanation.
(1) In general. Article 79 contains two provisions concerning notice of Lesser included offenses: (1) offenses that are “necessarily included” in the charged offense in accordance with Article 79(b)(1); and (2) offenses designated as Lesser included offenses by the President under Article 79(b)(2). Each provision sets forth an independent basis for providing notice of a lesser included offense.
(2) “Necessarily included” offenses. Under Article 79(b)(1), an offense is “necessarily included” in a charged offense when the elements of the lesser offense are a subset of the elements of the charged offense, thereby putting the accused on notice to be prepared to defend against the lesser offense in addition to the offense specifically charged. A lesser offense is “necessarily included” when:
(a) All of the elements of the lesser offense are included in the greater offense, and the common elements are identical (for example, wrongful appropriation as a lesser included offense of larceny);
(b) All of the elements of the lesser offense are included in the greater offense, but at least one element is a subset by being legally less serious (for example, unlawful entry as a lesser included offense of burglary); or
(c) All of the elements of the lesser offense are “included and necessary” parts of the greater offense, but the mental element is a subset by being legally less serious (for example, voluntary manslaughter as a lesser included offense of premeditated murder).
(3) Offenses designated by the President. Under Article 79(b)(2), Congress has authorized the President to designate Lesser included offenses by regulation.
(a) The President may designate an offense as a lesser included offense under Article 79(b)(2), subject to the requirement in Article 79(c) that the designated lesser included offense “shall be reasonably included in the greater offense.”
(b) Appendix 12A sets forth the list of Lesser included offenses designated by the President under Article 79(b)(2).
(c) The President may include a “necessarily included offense” in the list of offenses prescribed under Article 79(b)(2), but is not required to do so. A court may identify an offense as a “necessarily included” offense under Article 79(b)(1) regardless of whether the offense has been designated under Article 79(b)(2).
Discussion
For offenses that may or may not be lesser included offenses, see R.C.M. 307(c)(3) and its accompanying Discussion regarding charging in the alternative.
(4) Sua sponte duty. Subject to R.C.M. 920(g), a military judge must instruct panel members on lesser included offenses reasonably raised by the evidence.
(5) Multiple Lesser included offenses. When the offense charged is a compound offense comprising two or more Lesser included offenses, an accused may be found guilty of any or all of the offenses included in the offense charged.
(6) Findings of guilty to a lesser included offense. A court-martial may find an accused not guilty of the offense charged, but guilty of a lesser included offense by the process of exception and substitution. The court-martial may except (that is, delete) the words in the specification that pertain to the offense charged and, if necessary, substitute language appropriate to the lesser included offense. For example, the accused is charged with murder in violation of Article 118, but found guilty of voluntary manslaughter in violation of Article 119. Such a finding may be worded as follows: Of the Specification: Guilty, except the word “murder” substituting therefor the words “willfully and unlawfully kill,” of the excepted word, not guilty, of the substituted words, guilty. Of the Charge: Not guilty, but guilty of a violation of Article 119. If a court-martial finds an accused guilty of a lesser included offense, the finding as to the charge shall state a violation of the specific punitive article violated and not a violation of Article 79.
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.
3a-3-1CONVICTION OF LESSER INCLUDED OFFENSE

a. This paragraph does not contain any instructions but will assist the judge when the evidence raises a lesser included offense. A lesser included offense is one that is raised by the evidence and: (1) is “necessarily included” in the greater offense charged (See, elements test outlined in US v. Jones, 68 MJ 465 (CAAF 2010), US v. Alston, 69 MJ 214 (CAAF 2010)); or (2) is designated a lesser included offense by the President (See Appendix 12A, Manual for Courts-Martial). The offenses expressly designated as lesser included offenses by the President in Appendix 12A only apply to offenses committed on or after 1 January 2019.

b. When the evidence raises a lesser included offense, the judge must instruct on the lesser included offense. This is done after instructing upon the charged offense. In the usual case, the order of instructions will be:

(1) Instructions and definitions of the charged offense.

(2) Introducing the lesser included offense. See paragraph 2-5-10 and paragraph 8-3-9.

(3) Elements and definitions of the lesser included offense.

(4) Comparison between the offense charged and the lesser included offense. See paragraph 2-5-10b and paragraph 8-3-9b.

(5) If more than one lesser included offense is raised by the evidence, follow the instructional pattern in subparagraphs (2) through (4) above for each lesser included offense.

c. When lesser included offenses are raised by the evidence, the judge must ensure that a properly tailored Findings Worksheet is prepared and the judge instructs the members on the use of that worksheet.

d . See also Instructions 7-15 and 7-16 with respect to variance and findings by exceptions and substitutions.

Source: Instruction 3a-3-1 · view original on jagcnet.army.mil