UCMJ Article 79 Conviction of Lesser Included Offense vs Article 80 Attempts: Reduced Conviction vs Uncompleted Crime
On this page: 5 sections
Article 79 is not a crime. It tells a court-martial what it may find an accused guilty of: the offense charged, a lesser included offense, or an attempt. Article 80 is a crime: an overt act, done with specific intent to commit an offense, that goes beyond mere preparation. The two meet in Article 79(a)(3), which lets a court-martial convict of an attempt when the charge was the completed offense.
Article 79: what the findings may be
(a) … 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.
Source: 10 U.S.C. § 879(a) (Article 79).
Subsection (b) defines a lesser included offense two ways: “(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.” Under subsection (c), a designated offense “shall be reasonably included in the greater offense.”
Necessarily included offenses
The Manual for Courts-Martial describes three forms (MCM, Part IV, ¶ 3.b(2)):
- all elements of the lesser offense are included and identical, as with wrongful appropriation within larceny;
- all elements are included, but one is legally less serious, as with unlawful entry within burglary;
- all elements are included, but the mental element is less serious, as with voluntary manslaughter within premeditated murder.
Offenses designated by the President
The President’s list of designated lesser included offenses is Appendix 12A of the Manual (¶ 3.b(3)(b)). The two routes are independent: a court may treat an offense as necessarily included under Article 79(b)(1) whether or not it appears on the list (¶ 3.b(3)(c)).
How a lesser finding is made
A military judge must instruct the members on lesser included offenses reasonably raised by the evidence, subject to R.C.M. 920(g) (¶ 3.b(4)). The court-martial reaches the lesser finding by exceptions and substitutions: it deletes the words that describe the charged offense and substitutes words for the lesser one. The finding then names the specific punitive article violated, “and not a violation of Article 79” (¶ 3.b(6)).
Article 80: the attempt offense
(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing to effect its commission, is an attempt to commit that offense.
Source: 10 U.S.C. § 880(a) (Article 80).
The elements are an overt act, specific intent to commit a certain offense, an act amounting to more than mere preparation, and an act that apparently tended to bring about the intended offense (¶ 4.b). Four points from the Manual’s explanation bear on the boundary with Article 79:
- Preparation versus attempt. Buying matches intending to burn a haystack is preparation; applying a burning match to the haystack is an attempt, “even if no fire results” (¶ 4.c(2)).
- Completion is no bar. A person “may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated” (10 U.S.C. § 880(c)).
- Failure to complete is no defense, whatever the cause. A person who performs the overt act and then decides not to go through with the offense has still attempted it (¶ 4.c(2)).
- Voluntary abandonment is a narrow defense: the person must abandon the crime completely, before completion, “solely because of the person’s own sense that it was wrong.” Fear of detection, waiting for a better chance, or unexpected resistance does not qualify (¶ 4.c(4)).
Some attempts are charged under their own articles rather than Article 80, including desertion, mutiny or sedition, subordinate compelling surrender, espionage, aiding the enemy, death or injury of an unborn child, and assault (¶ 4.c(6)).
How the two work together
| Lesser included offense (Article 79) | Attempt (Article 80) | |
|---|---|---|
| Nature | A rule about permissible findings | A separate offense |
| What it produces | A conviction of a smaller completed offense contained in the charge | A conviction of trying to commit the offense |
| Is completion of the greater offense relevant | The lesser offense must itself be completed | An attempt conviction is allowed even if the offense was completed |
| Route when only the greater offense is charged | Article 79(a)(2) | Article 79(a)(3) |
For example, a service member is charged with larceny of a laptop from a barracks room. If the evidence shows the accused took it but meant to return it, the members may find wrongful appropriation, a lesser included offense. If the evidence shows the accused was caught with a hand inside the locker before taking anything, they may find attempted larceny under Article 79(a)(3), even though the charge alleged a completed theft. Which findings the evidence reasonably raises is decided by the military judge in the instructions and by the members in deliberation.
Maximum punishments
A lesser included offense carries its own maximum, set in Part IV of the Manual for that offense.
An attempt under Article 80 carries the maximum authorized for the offense attempted, with limits: no death penalty, and no confinement over 20 years except for attempted murder. Mandatory minimum provisions do not apply to attempts, except attempts of rape and sexual assault under Article 120(a) or (b) and rape and sexual assault of a child under Article 120b(a) or (b) (MCM, Part IV, ¶ 4.d).
Where every finding of guilty is for an offense committed after December 27, 2023, and the case is not capital, the military judge sets the sentence in a general or special court-martial (10 U.S.C. § 853(b)(1)).
Sources
- 10 U.S.C. § 879, conviction of offense charged, lesser included offenses, and attempts (Article 79)
- 10 U.S.C. § 880, attempts (Article 80)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 3 and ¶ 4, and Appendix 12A.
Articles 79 and 80 are described as the statute and the Manual set them out; this is not an analysis of any charge sheet or finding. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.