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Article 79 of the Uniform Code of Military Justice (UCMJ) provides the basic rule for lesser included offenses (LIOs): "An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein."1 In April 2010, the Court of Appeals for the Armed Forces (CAAF) issued a landmark decision governing the interpretation of Article 79. In United States v. Jones, the CAAF returned to the basic "elements test" for determining which offenses are necessarily included in other offenses under the UCMJ.2 While this fundamental shift appears to greatly simplify the doctrine, application of the holding generates significant questions that will challenge practitioners and military judges until subsequent decisions offer more clarification. The purpose of this note is to alert practitioners to this important decision and its implications for court-martial practice.
In Jones, the CAAF stated the "elements test" as follows:
Under the elements test, one compares the elements of each offense. If all of the elements of offense X are also elements of offense Y, then X is an LIO of Y. Offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements.3
The basic source of this test is United States v. Schmuck, a 1989 Supreme Court case analyzing Federal Rule of Criminal Procedure (FRCP) 31(c), which, for a time, was substantially similar to the language of Article 79.4 In Schmuck, the Supreme Court held that, for FRCP 31(c), "one offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given . . . ."5 In 1993, in United States v. Teters, the Court of Military Appeals (CMA) adopted this "elements test" for lesser included offenses under Article 79, UCMJ.6
About a year later, in United States v. Foster,7 the CMA found it necessary to soften this basic elements test when actually applying it to military offenses. First, the court had to account for those offenses in the Manual for Courts-...