At Bilecki Law Group, we expertly defend service members from charges of a lesser included offense as identified under Article 79 of the UCMJ. When defended well, Article 79 can be a path to freedom. When defended poorly, it enables prosecutors to destroy a service member's life when the original changes don’t stick. We fight and we win.
What Is Article 79 Of The UCMJ?
Article 79 of the UCMJ is not a charge and contains no instructions, but it assists the military 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, Or
2- Is designated a lesser included offense by the President.
Essentially, Article 79 is a double edged sword that will either burn the prosecution or the defense depending on the attorney’s skill. If the prosecution charges you with an unsupported charge of larceny and knows it cannot prove an intent to deprive the owner permanently, it may try to obtain a conviction for the lesser included offense of wrongful appropriation, which involves an intent to deprive the owner temporarily.
Meanwhile, if you made a terrible mistake and it looks like the larceny charge has some legs, an experienced defense attorney can wield lesser included charges like a pro and drastically reduce the consequences and long-term ramifications of that mistake. It really does boil down to the experience and skill set of your attorney and your entire life can hang in the balance if lose the fight over how LIO are wielded against you. An experienced trial lawyer will also know when to try to waive any LIO’s and go “all or nothing” when they know the prosecution didn’t prove the charged offense but may have proved a lesser included.
The Military Justice System Exists For The Purpose Of Order And Not Justice
If this is your first run-in with the military justice system and you are researching your dilemma now, here is the most important thing you need to know. The military justice system does not exist for the purpose of pursuing justice. That might sound counterintuitive to you, but it is the absolute discernable truth. The military justice system exists for the purpose of maintaining good order and discipline within the military and for that to work, they need to make an example out of someone. They need to scare the hell out of the rest of those in uniform and nothing does that more than absolutely destroying the lives of service members who run afoul of the UCMJ.
That’s why when they come at you with a bogus charge that you know is unfounded, you can’t automatically assume you will beat it. If they can’t get you for the charge of larceny, they will double down on the charge of wrongful appropriation. If they can’t get you for robbery, they will double down on the charge of larceny. It goes on and on until they get their example. What’s worse is that they try to make you somehow thank them or feel grateful when they go for the lesser charge and hope you will just accept it.
What’s The Worst That Can Happen If Convicted Of A Lesser Included Offense?
It is important to note that you cannot be charged specifically under Article 79 of the UCMJ. If you are found guilty of a lesser included offense, its own elements and authorized punishment control. For example, larceny requires an intent to deprive the owner permanently, while wrongful appropriation requires an intent to deprive the owner temporarily. The difference can change both what the prosecution must prove and what punishment the court can impose.
We’ve witnessed countless instances where the prosecution goes for the heavier charge of burglary when they damn well know they can’t prove it. That’s because they want to scare inexperienced attorneys and service members into living in fear of the higher charge, so that the lesser charge feels like mercy. We’ve also witnessed other instances where the prosecution was so confident that they had our client on the greater charge that they were almost in tears when we destroyed their case back to the lesser charge. Again, it all depends on the experience of your court martial attorney.
This is also a problem for service members because the military justice system packs the prosecution with their “rising stars” and gives them with every resource they need. Your detailed military defense counsel may be a capable lawyer. The question is what your case requires and what additional experience and preparation we can bring to the defense.
How Can I Fight Back Against Prosecutorial Overreach And The Misuse of Lesser Included Offenses?
The answer is right there in the subheading. Namely, we fight back. As we mentioned earlier, the military justice system needs to make an example out of someone and they perceive you to be an easy target, they will roll over you without mercy. That’s why you must fight back because a fight is the last thing the military justice system wants.
Please don’t let the “promise” of a lesser included offense lull you into complacency. Lesser included offenses can still put you in prison for years, destroy your future with a punitive discharge, and leave you family drowning in debt while waiting on you to get out. If you don’t choose Bilecki, then please choose another experienced military defense attorney and fight. Whatever you do, don’t lay down.
As for us, when you secure Bilecki we’ll get our own investigation going because we know not to trust what the military investigators put together. We’ll shred their case to pieces with a thousand cuts and if need be and it will be the prosecution that feels thankful when a lesser included offense is considered. If we have to get an officer within your command on the stand and shred their testimony to pieces as well, that’s good with us. Because our guiding mantra is that you cannot coexist with a military justice system that is out to destroy you.
As we said, Article 79 can lay out a path to freedom or a path to the end of everything you worked for, even if the original higher charge can’t be proved. You and your attorney just have to get this one right and that is true whether you made an honest mistake that ran afoul of the UCMJ or you are completely innocent. In either case, your only choice is to fight. Reach out to Bilecki and we’ll give you a free consultation and tell you exactly what you are facing. Then, as long as you are willing to fight, so are we.
Bilecki Law Group will help you fight back when the prosecution seeks a conviction for a lesser included offense.
Sentencing Guidelines
For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. The military judge must sentence within the applicable confinement range unless specific facts justify a departure. If the judge departs, the record must contain a written statement explaining the factual basis. These ranges do not replace the lawful maximum punishment for the offense or the court-martial’s jurisdictional limits. For offenses assigned sentencing criteria instead of a category, the judge must consider those criteria.
The punishment summaries describe the current offense limits for enlisted members; earlier conduct must be assessed under the law applicable on its date. Reduction to E-1 applies to enlisted members. Dismissal applies to commissioned officers, including commissioned warrant officers, cadets, and midshipmen. A dishonorable discharge applies to enlisted members and uncommissioned warrant officers; a bad-conduct discharge applies only to enlisted members. Court-martial jurisdiction and any plea agreement can further limit the sentence.
Offenses Under
This Article
Offense Category
Category Confinement Range (Months)
Conviction of offense charged, lesser included offenses, and attempts
Dependent on underlying offense
Facing an Allegation?
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Frequently Asked Questions About Article 79
Can I Be Charged Under Article 79?
No. You cannot be charged specifically under Article 79 of the UCMJ. Rather, you may be found guilty of any lesser included offense of the greater offense to which you have been charged.
Can Prosecutors Charge Me with Multiple Lesser Included Offenses?
Yes they can. According to the Manual for Court Martial, “when the offense charged is a compound offense comprising two or more included offenses, an accused may be found guilty of any or all of the offenses included in the offense charged.”
The government may charge offenses in the alternative, but multiple accusations do not automatically permit cumulative convictions or punishment. A lesser included offense does not become an extra punishment simply because it is included in a greater offense. Multiplicity, unreasonable multiplication of charges, the offenses actually proved, and the applicable sentencing rules must be addressed before calculating exposure.