United States v. Foster, 40 M.J. 140 (C.M.A. 1994). Citing Schmuck, the Court held: “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” (emphasis omitted). This formulation of the test for multiplicity and lesser included offenses caused a significant issue for offenses charged under Art. 134, which needs proof of an element not required for proof of offenses under Arts. 80–132: that the conduct was prejudicial to good order and discipline or service-discrediting. The Court held that the phrase “necessarily included” in Art. 79 “encompasses derivative offenses under Article 134.” An offense under Art. 134 may, “depending on the facts of the case, stand either as a greater or lesser offense of an offense arising under an enumerated article.” This is because “the enumerated articles are rooted in the principle that such conduct per se is either prejudicial to good order and discipline or brings discredit to the armed forces; these elements are implicit in the enumerated articles.”
United States v. Weymouth, 43 M.J. 329 (C.A.A.F. 1995). The Court refined its holdings in Teters and Foster, adopting the “pleadings-elements” approach: “In the military, the specification, in combination with the statute, provides notice of the essential elements of the offense” (emphasis omitted). The CAAF cautions that it did not retreat to the “fairly embraced” test rejected in Teters: “Either the elements alleging the greater offense (by the statute and pleadings) fairly include all of the elements of the lesser offense or they do not. As alleged, proof of the greater offense must invariably prove the lesser offense; otherwise the lesser offense is not included.”
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