Article 79 UCMJ – Lesser Included Offenses & Attempts – Military Defense Lawyers
UCMJ Military Defense Guide by Gonzalez & Waddington
Article 79 of the Uniform Code of Military Justice is one of the most powerful—and least understood—articles in the entire military justice system. Under Article 79, a service member may be convicted of a lesser included offense (LIO) or an attempt to commit an offense, even if that lesser offense was never charged, explicitly named, or included in the charge sheet.
This means the government can charge a service member with a serious offense—such as sexual assault, robbery, burglary, larceny, or assault—yet the panel or judge may convict the service member of a different, lesser offense that was never mentioned during the investigation or referral of charges.
Florida service members face a high risk of Article 79 issues due to the frequency of sexual assault accusations, alcohol-related incidents, barracks conflicts, domestic disputes, and command pressure to “get a conviction” even when the evidence is weak. Commands often refer heavy charges in Pensacola, Jacksonville, Eglin, Hurlburt, Patrick, MacDill, NAS Key West, and Coast Guard Sectors—knowing that even if the primary charge fails, they can secure an LIO conviction under Article 79.
Gonzalez & Waddington is internationally recognized for dismantling weak sexual assault, assault, and property crime cases where LIOs and attempt charges are used as fallback strategies by prosecutors. We expose weaknesses in evidence, challenge sloppy command investigations, and prevent convictions based on technicalities or catch-all LIO theories.
What Article 79 Criminalizes
Article 79 does not criminalize conduct itself. Instead, it authorizes the court to convict a service member of:
- A lesser included offense of the charged offense
- An attempt to commit the charged offense
- An attempt to commit a lesser included offense
- An offense necessarily included in the charged crime
In practice, this means a service member can face conviction for a crime the government never charged—so long as the LIO fits within the legally defined framework of Article 79.
Examples of Lesser Included Offenses Under Article 79
Common LIO Scenarios
Below are examples of LIOs often used by prosecutors:
- Sexual Assault → Abusive Sexual Contact
- Rape → Attempted Rape
- Aggravated Assault → Simple Assault
- Robbery → Larceny
- Burglary → Housebreaking
- Attempted Murder → Aggravated Assault
- Strangulation → Assault Consummated by Battery
- False Official Statement → Negligent Dereliction
This is why Article 79 can be so dangerous—service members may prepare their defense for a serious charge, only to be surprised at trial when the government pushes a different, related offense as an LIO.
Elements the Government Must Prove Under Article 79
To convict someone of an LIO or attempt under Article 79, prosecutors must show:
1. The Charged Offense Includes a Lesser Offense Within It
Courts examine statutory elements, not allegations.
2. Evidence Supports the Lesser Charge
The government must prove the LIO beyond a reasonable doubt.
3. The Defense Received Fair Notice
Constitutionally, the LIO must be foreseeable—but commands often stretch this rule.
4. The LIO Does Not Add New Elements
It must be a subset of the charged offense.
5. Attempt Requires “More Than Mere Preparation”
The accused must have taken a substantial step toward the crime.
When Article 79 Is Misused by Commands
Article 79 is often used improperly in Florida cases involving:
- Weak sexual assault evidence (Pensacola, Jacksonville, Key West)
- Alcohol-related fights with conflicting witness stories
- Domestic disputes during which claims shift repeatedly
- Training environments where overcharging is common
- Barracks incidents with many witnesses and unreliable memory
Prosecutors sometimes rely on LIOs as “fallback” convictions because they know the main charge is weak.
We destroy these cases by exposing the legal flaws in their LIO theories.
Why Article 79 Is Common in Florida
Florida’s military landscape creates circumstances ripe for LIO and attempt charges:
- High alcohol consumption leading to contested narratives
- Large population of aviation and special operations trainees under extreme pressure
- Frequent sexual assault allegations on bases like Pensacola and Mayport
- Group altercations involving multiple service members and civilians
- Civilian police involvement misinterpreting military dynamics
- Nightlife incidents at Jacksonville Beach, Miami, and Tampa
These environments produce cases where prosecutors rely on LIOs after their primary allegations fall apart.
Common Real-World Scenarios Involving Article 79
1. Sexual Assault Cases With Contradictory Testimony
Prosecutors pivot to “abusive sexual contact” or “assault consummated by battery” when rape evidence is weak.
2. Bar Fights or Domestic Incidents
Main assault charge collapses → prosecution pushes LIO instead.
3. Robbery Cases Based Only on Words
Robbery lacks evidence → government argues for larceny as an LIO.
4. Burglaries With No Intent to Commit a Crime Inside
Burglary not provable → prosecutors push “housebreaking” or trespass-like LIOs.
5. False Official Statement Cases
Prosecutors fall back on negligence-based LIOs.
6. Attempt Charges Used to Salvage a Weak Case
When the government cannot prove the offense was completed, they claim it was “attempted.”
7. Military Sexual Assault Training Pressures
Commands under political pressure refer heavy charges, expecting an LIO conviction if they cannot prove rape.
How Article 79 Investigations Work
Article 79 does not require its own investigation—it becomes relevant when prosecutors decide the evidence does not meet the charged offense and pivot to an LIO or attempt theory.
Agencies involved:
- NCIS
- OSI
- CID
- CGIS
- JAG prosecutors
- Command legal advisors
Common Failures
- No notice to the defense that an LIO is coming
- Adding elements not contained in the original charge
- Misapplying LIOs to sexual assault offenses
- Using attempt charges improperly to rescue a failing case
- Relying on faulty legal advice from inexperienced JAGs
We aggressively attack these procedural violations.
Defense Strategies for Article 79 Cases
1. Attack the LIO Legality
We prove the LIO does NOT legally fit the charged offense under element analysis.
2. Prove Lack of Notice
The defense must have a fair chance to confront the LIO.
3. Expose Prosecutorial Overreach
Commands often misuse LIOs when their case collapses.
4. Destroy the Attempt Theory
Attempts require substantial steps—not mere preparation.
5. Use Florida-Specific Defense Angles
- Drunken misinterpretation
- Contradictory civilian witnesses
- Tourist-heavy environments creating chaos
6. Highlight Reasonable Doubt
If the main charge is weak, the LIO often suffers from the same weaknesses.
7. Leverage Expert Witnesses
Especially in sexual assault and violent-offense cases.
Pro Tips for Service Members Facing Article 79 Issues
- Do NOT assume the government must convict you of the charged offense.
- Be prepared for LIO surprises during trial.
- Ask your lawyer to analyze every potential LIO early.
- Do NOT give statements to investigators.
- Preserve all digital evidence.
- Avoid discussing the case with peers—it creates new risks.
- Hire a seasoned civilian defense lawyer immediately.
Related UCMJ Articles
- Article 77 – Principals
- Article 80 – Attempt
- Article 81 – Conspiracy
- Article 92 – Failure to Obey an Order
- Article 134 – General Article
Article 79 UCMJ – Frequently Asked Questions
Can I be convicted of a crime I was never charged with?
Yes. Article 79 allows conviction of lesser included offenses and attempts—even if they were never listed on the charge sheet. We aggressively attack improper LIOs.
What is a “lesser included offense”?
An LIO contains fewer elements than the charged offense. For example, abusive sexual contact is an LIO of sexual assault. The government often relies on LIOs when their main charge fails.
Can attempt charges replace a weak case?
Yes, and prosecutors frequently misuse attempt charges to salvage cases. We destroy these charges by proving the accused never took a “substantial step.”
What if I didn’t know about the LIO?
The defense must receive fair notice. We challenge improper LIO surprises and fight for dismissal when due process is violated.
Why hire Gonzalez & Waddington?
We are world-class military trial lawyers with unmatched skill in defeating LIO-based and attempt-based prosecutions. Our courtroom strategy has dismantled hundreds of weak Article 79 cases worldwide.
Final Takeaways
Article 79 is a powerful and dangerous legal tool that enables prosecutors to secure convictions for lesser included offenses or attempts—even when the primary charge collapses. However, with expert legal strategy, deep knowledge of UCMJ element analysis, and aggressive trial advocacy, Article 79 cases can often be beaten entirely.
Your silence protects you.
Your lawyer defends you.
Your strategy determines your future.