Crackin the Kraken

The complicated history of determining lesser included offenses (LIOs) under the Uniform Code of Military Justice (UCMJ) gained a new chapter with the Military Justice Act of 2016 (MJA 2016). While MJA 2016 simplified and clarified certain areas of military justice, it has only muddied the waters regarding LIO identification. Prior to MJA 2016, determining the LIO of a given punitive article under the UCMJ required performing a strict elements test from United States v. Jones; this test often proved challenging to counsel and judges alike. Confusion over LIOs was particularly common when it came to the relationships between the various rape and sex offenses, and determining which LIOs they implicated.
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In an attempt to simplify LIO analysis, MJA 2016 has instead released a kraken of confusion. The Military Justice Act of 2016 sought to combine (1) the certainty of the elements test with (2) the convenience of looking to a list of offenses in the Manual for Courts-Martial (MCM).The Military Justice Act of 2016 did the first part by codifying the judicially-created elements test in Article 79(b)(1), UCMJ.5 It accomplished the second part by allowing the President to designate offenses that are “reasonably included in the greater offense” in Article 79(b)(2). The President did so by listing such offenses in Appendix 12A, effective 1 January 2019.7 However, when the President designated offenses that contained elements not present in the greater offense as LIOs, the current understanding of LIOs was turned on its head.

MAJ Andrew M. Lewis, The Lego Test for Lesser Included Offenses: MJA 2016 Provides Something New and Painful to Stumble Over. Army Lawyer, No. 6,  2021.