(a) IN GENERAL.—An accused may be found guilty of any of the following:

The offense charged.

A lesser included offense.

An attempt to commit the offense charged.

An attempt to commit a lesser included offense, if the attempt is an offense in its own right.

In this section (article), the term “lesser included offense” means—

an offense that is necessarily included in the offense charged; and

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.

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.

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:

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);

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

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).

Under Article 79(b)(2), Congress has authorized the President to designate Lesser included offenses by regulation.

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.”

Appendix 12A sets forth the list of Lesser included offenses designated by the President under Article 79(b)(2).

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).

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.

Subject to R.C.M. 920(g), a military judge must instruct panel members on lesser included offenses reasonably raised by the evidence.

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.

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.