UCMJ Article 115: Communicating Threats

A threat does not have to be carried out to do damage. Inside a military unit, a single statement that a reasonable person would take as a genuine intent to harm can poison trust, fracture cohesion, and escalate toward real violence. Article 115 of the Uniform Code of Military Justice (UCMJ) recognizes this by criminalizing the wrongful communication of a threat itself, complete the moment the threat is conveyed, regardless of whether the speaker ever meant to act on it.

Communicating threats was once charged as an enumerated offense under the general article, Article 134. The Military Justice Act of 2016, effective 1 January 2019, moved it into its own provision at 10 U.S.C. 915. Because the offense now stands on its own, the prosecution no longer has to prove the old terminal element of prejudice to good order and discipline or service discredit. Article 115 today defines three related offenses, all keyed to whether a reasonable person would perceive a serious expression of intent to harm.

The three offenses under Article 115

The statute separates wrongful threats into three categories:

  • Communicating threats generally: wrongfully communicating a threat to injure the person, property, or reputation of another.
  • Communicating a threat to use an explosive, weapon of mass destruction, biological or chemical agent, or hazardous material: wrongfully communicating a threat to injure a person or property by one of those means.
  • Communicating a false threat concerning use of an explosive or similar means: maliciously communicating information that the accused knows to be false concerning a supposed attempt or intent to injure by such means.

A “threat,” for these purposes, is an expressed present determination or intent to kill, injure, or intimidate a person, or to damage or destroy certain property, presently or in the future.

Elements the government must prove

For the general offense, the prosecution must prove:

  1. That the accused communicated certain language, in writing, by speech, or by gesture.
  2. That the communication amounted to a threat to injure the person, property, or reputation of another.
  3. That the communication was wrongful.

For a threat using an explosive or similar means, the government must additionally prove that the threatened injury was to be inflicted by an explosive, a weapon of mass destruction, a biological or chemical agent, substance, or weapon, or a hazardous material.

For a false threat, the government must prove that the accused communicated information concerning a supposed attempt or threat to injure by such means, that the information was false and known to be false, and that the communication was malicious.

The controlling test for an ordinary threat is objective: whether the statement, taken in context, would be understood by a reasonable person as a serious expression of intent to inflict harm. The speaker’s actual ability to carry out the threat is not an element.

Maximum punishment

Maximum punishments under the Manual for Courts-Martial (MCM) scale with the nature of the threat:

  • Communicating a threat (general): dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
  • Threat to use an explosive, weapon of mass destruction, biological or chemical agent, or hazardous material: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
  • Communicating a false threat concerning such means: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

For offenses committed on or after 27 December 2023, a military judge determines the sentence under the sentencing-parameter framework; the figures above remain the statutory ceiling.

Defenses

Defense theories focus on intent, perception, and wrongfulness. Lack of a serious threat argues that the words or gesture, read in context, would not be taken by a reasonable person as a genuine expression of intent to harm. Not wrongful covers communications made in a lawful context, such as training scenarios, lawful orders, or banter clearly understood as non-serious. Insufficient proof challenges whether the accused actually made or authored the communication at all. For a false-threat charge, the government must prove the accused knew the information was false and acted maliciously, so disproving knowledge or malice defeats that specification. Provocation or stress may mitigate a sentence but does not, by itself, negate guilt.

Distinctions from neighboring articles

  • Article 128 (Assault): Assault is an attempt or offer to do bodily harm, requiring an act that puts the victim in apprehension of immediate harm or an actual attempt to inflict it. A threat under Article 115 is a communicated expression of intent that need not be accompanied by any immediate menacing act.
  • Article 117 (Provoking speeches or gestures): This offense targets language or gestures that are provoking or reproachful toward another person. It does not require a threat of injury, and it carries a far lower maximum punishment.
  • Article 130 (Stalking): Stalking involves a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including a credible threat. A single communicated threat is charged under Article 115; a repeated pattern that places a victim in sustained fear may implicate Article 130.

Frequently asked questions

Does the threat have to be carried out? No. The offense is complete once the wrongful threat is communicated. Whether the accused intended or was able to follow through is not required.

Can a joke be a threat? Not if a reasonable person, considering the full context, would understand the statement as plainly in jest. The objective test asks how the words would be perceived, so context is decisive.

Are electronic communications covered? Yes. Threats sent by text, email, social media, or other electronic means fall within the article just as spoken or written threats do.

Does it matter that the accused could not actually carry out the threat? No. Ability to execute the threat is not an element. The question is whether the communication conveyed a serious expression of intent to harm.

What is the maximum punishment? For a general threat, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. Threats involving an explosive or weapon of mass destruction, and false threats concerning such means, carry up to 10 years.

How is a threat different from an assault? Assault requires an act that attempts or offers immediate bodily harm. A threat is a communicated expression of intent to harm, which can be charged even without any physical move toward the victim.

Sources

10 U.S.C. § 915, Article 115 (Communicating threats): https://www.law.cornell.edu/uscode/text/10/915
Manual for Courts-Martial, United States (2024 edition), Part IV: https://jsc.defense.gov/Portals/99/2024%20MCM%20files/MCM%20(2024%20ed)%20(20240102)%20(adjusted%20bookmarks).pdf
10 U.S.C. § 928, Article 128 (Assault): https://www.law.cornell.edu/uscode/text/10/928

Military Attorney Joseph L. Jordan, Articles of the UCMJ

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.

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