If Article 79 has come up in your court-martial, it does not mean Article 79 is a separate criminal offense with which you have been charged. Article 79 governs what a court-martial may find you guilty of in relation to the offense already charged against you.

Under Article 79, you may be found guilty of:

• the offense charged;
• a lesser included offense;
• an attempt to commit the charged offense; or
• an attempt to commit a lesser included offense when that attempt is itself an offense.

The practical question is not only whether the government can prove the main charge. It is also whether another finding is legally available and, if so, whether the evidence proves it.

When Can a Lesser Included Offense Still Be in Play?

A lesser included offense is not simply any offense that sounds similar to the charge against you.

Article 79 recognizes an offense necessarily included in the charged offense and also permits lesser included offenses designated by regulation prescribed by the President. A presidentially designated lesser included offense must be reasonably included in the greater offense.

That creates two separate questions.

First, is the lesser offense legally available? The relationship between the charged offense and the proposed lesser offense must satisfy Article 79.

Second, does the evidence prove the lesser offense? Legal availability is not proof of guilt. Even when a lesser included offense may properly be considered, the government still has to prove that offense under the applicable burden of proof.

This distinction matters when part of the greater charge is weak. Failure to prove the greater offense does not automatically mean another guilty finding remains available, but it also does not automatically mean the entire case disappears.

How Attempts Can Change the Picture

Article 79 also permits certain findings involving attempts. Attempts themselves are addressed under UCMJ Article 80.

Article 80 defines an attempt as an act committed with the specific intent to commit an offense, going beyond mere preparation and tending toward commission of that offense even though the effort fails.

There is another part of Article 80 that is easy to miss: an attempt conviction is not limited to a situation in which the underlying offense was never completed.

Article 80 provides that a person may be convicted of an attempt even when it appears at trial that the offense was consummated.

So “the offense was completed” and “an attempt cannot be considered” are not the same conclusion under the UCMJ.

Whether an attempt is actually available in your case still depends on the charged offense, the findings legally available, and the evidence.

What Does Article 79 Mean for Your Actual Exposure?

There is no single punishment for an “Article 79 case.”

Article 79 governs possible findings rather than establishing one standalone offense with one universal sentence. Sentencing exposure depends on the offense reflected in the finding and the law governing that offense. Article 80 separately addresses punishment for attempts unless another punishment is specifically prescribed.

The useful questions are specific to your case:

• What offense has actually been charged?
• Is a lesser included offense legally available?
• Is an attempt a possible finding?
• Which elements separate the greater offense from the other possible findings?
• What evidence supports or undermines those disputed elements?

Your potential exposure turns on the finding actually reached and the law governing that offense, not on Article 79 by itself.

How Crisp and Associates, LLC Evaluates an Article 79 Issue

Crisp and Associates, LLC reviews the charged offense and specification, identifies any lesser included offense or attempt that may legally be considered, and evaluates the government’s evidence against the requirements of each possible finding.

The point is not to label your case an “Article 79 charge.” It is to determine what you are actually accused of, what other findings may legally remain in the case, and what the government would still have to prove.

If you already have your charge sheet, have it available when you speak with counsel. The wording of the charge and specification gives the attorney a concrete starting point for evaluating how Article 79 may affect your case.

If you are facing a court-martial and need to understand what findings may still be at issue, contact Crisp and Associates, LLC for a consultation.