UCMJ Article 80: Attempts

A crime that fails or is interrupted can still reflect a deliberate decision to break the law. Article 80 of the Uniform Code of Military Justice addresses that reality by punishing attempts. It reaches the service member who, intending to commit an offense under the Code, takes an act that moves beyond mere preparation toward carrying it out, even if the offense is never completed. The law treats the combination of criminal intent and concrete action as a punishable wrong, because that combination already poses a threat to order and discipline.

Article 80 functions as a general attempt provision that applies across nearly the entire Code. Where a specific article does not supply its own attempt rule, Article 80 fills the gap. This breadth makes the article a routine companion to substantive charges, allowing accountability when intervention, chance, or failure prevents a planned offense from being completed.

The statutory text

Article 80 is codified at 10 U.S.C. 880. Subsection (a) defines an attempt as “an act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission.” Subsection (b) provides that a person who attempts to commit any offense punishable under the Code “shall be punished as a court-martial may direct,” unless otherwise specified. Subsection (c) makes clear that a person may be convicted of an attempt even though the evidence at trial shows the offense was in fact completed.

Elements the government must prove

To convict under Article 80, the prosecution must establish beyond a reasonable doubt:

  1. That the accused did a certain overt act.
  2. That the act was done with the specific intent to commit a particular offense under the Code.
  3. That the act amounted to more than mere preparation.
  4. That the act apparently tended to effect the commission of the intended offense.

Specific intent is essential. Recklessness or negligence will not support an attempt; the accused must have intended to commit the particular offense. The overt act, in turn, must cross the line from planning into execution.

The line between preparation and attempt

The hardest question in most attempt cases is whether conduct has passed from preparation into a punishable attempt. Acquiring tools, gathering information, or discussing a plan generally remains preparation. The conduct becomes an attempt when the accused takes a direct step toward commission, beginning to use those tools or otherwise setting the offense in motion. Courts evaluate this boundary on the specific facts, asking whether the act apparently tended to bring about the offense rather than merely making it possible.

Impossibility

Article 80 distinguishes between two kinds of impossibility. Factual impossibility is not a defense. A person who tries to steal from a locker that turns out to be empty, or who tries to buy contraband from an undercover agent, is still guilty of an attempt, because the intent and the act toward commission are present regardless of whether success was possible. Legal impossibility stands differently. If the act the accused intended would not have been a crime even had it been completed, there is no attempt, because there was no offense to attempt. This distinction prevents punishing conduct that the law never prohibited.

Abandonment

Voluntary and complete abandonment can serve as a defense in some circumstances. If the accused freely and fully renounces the criminal purpose before completing the offense, attempt liability may not attach. The renunciation must be genuine and final. Abandonment driven by fear of detection, by the appearance of an obstacle, by the arrival of someone who might intervene, or by a decision merely to postpone the offense to a more favorable time does not qualify.

Maximum punishment

Article 80 does not set a single fixed penalty. As a general rule under the Manual for Courts-Martial, an attempt is punishable by the maximum authorized for the completed offense, subject to firm limits: the death penalty may not be adjudged for an attempt, and in no case other than attempted murder may confinement exceed twenty years. Thus an attempt to commit an offense that carries a five-year maximum cannot exceed five years, and the twenty-year ceiling caps attempts even where the completed offense would authorize more, except in the case of attempted murder.

Certain sexual offenses are treated distinctly. The Manual provides that the general mandatory minimum and related sentencing rules apply to attempts to commit rape and sexual assault under Article 120(a) and (b), rape and sexual assault of a child under Article 120b(a) and (b), and forcible sodomy under Article 125, so that these attempts are not subject to the same relief from mandatory provisions that applies to other attempts.

For offenses committed on or after December 27, 2023, sentencing in a general court-martial is generally determined by the military judge. The maximum authorized for the offense remains as described.

Distinctions from solicitation and conspiracy

Attempt is distinguished from solicitation under Article 82 and conspiracy under Article 81 by its focus on the accused’s own conduct. Attempt requires the accused personally to take a substantial step beyond preparation toward the offense. Solicitation requires only urging another to commit an offense and is complete on communication. Conspiracy requires an agreement among two or more people plus an overt act. The same facts may support more than one theory at different stages, but the proof differs at each.

Frequently asked questions

Does the offense have to be completed? No. Article 80 punishes the attempt itself. A conviction may stand even where the offense was never carried out, and even where the evidence shows it was completed.

Is factual impossibility a defense? No. A person who takes a substantial step toward an offense with the required intent is guilty even if success was impossible under the actual circumstances.

How long can confinement be for an attempt? Confinement may not exceed the maximum for the completed offense, may not exceed twenty years except for attempted murder, and may not include the death penalty.

When does abandonment excuse an attempt? Only when the renunciation is voluntary and complete before the offense is finished. Stopping out of fear of being caught or because of an obstacle is not a qualifying abandonment.

Does Article 80 apply to every offense? It applies broadly across the Code, except where a specific article supplies its own attempt provision.

Sources

10 U.S.C. 880, Article 80, Attempts: https://www.law.cornell.edu/uscode/text/10/880

10 U.S.C. 880 via U.S. House Office of the Law Revision Counsel: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section880&num=0&edition=prelim

Manual for Courts-Martial, United States, Part IV, Article 80: https://jsc.defense.gov/Military-Law/Current-Publications-and-Updates/

Military Attorney Joseph L. Jordan, Articles of the UCMJ

Disclaimer

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.

Related:

  1. UCMJ Article 82: Solicitation Military discipline can be threatened not only by a crime itself but by the act of urging someone else to commit one. Article 82 of the Uniform Code of Military......
  2. UCMJ Article 130: Stalking Repeated, unwanted attention can become a crime long before it turns into a physical attack. Following someone day after day, flooding a person with threatening messages, or watching their movements......
  3. UCMJ Article 128a: Maiming A service member who deliberately leaves another person permanently scarred, blinded, or missing the use of a limb has done something the military treats as far graver than an ordinary......
  4. UCMJ Article 134: Bigamy Marriage carries legal and financial consequences in the military, from dependent enrollment to housing allowances, so a service member who marries a second person while a prior marriage remains legally......
  5. UCMJ Article 102: Forcing a Safeguard A safeguard is a promise made in the name of the United States. When a commander issues a safeguard, it protects designated persons, property, or places from harm by friendly......
  6. UCMJ Article 122a: Receiving Stolen Property A service member who never stole anything can still face a court-martial for what happens to stolen goods afterward. When someone knowingly takes in, buys, or hides property that another......
  7. UCMJ Article 114: Carrying a Concealed Weapon A hidden knife in a waistband, a pistol tucked under civilian clothes off duty, brass knuckles slipped into a pocket on liberty overseas: each can place a service member under......
  8. UCMJ Article 108: Loss, Damage, Destruction, or Wrongful Disposition of US Military Property Military readiness depends on the equipment in a service member's hands: rifles, vehicles, aircraft, radios, and the countless tools issued for the mission. When that property is sold off, destroyed,......
  9. UCMJ Article 103b: Aiding the Enemy Few offenses in military law are graver than turning against one's own forces in time of conflict. Article 103b of the Uniform Code of Military Justice, codified at 10 U.S.C.......
  10. UCMJ Article 97: Unlawful Detention Authority over another person's liberty is one of the most serious powers the military entrusts to its members, and the law surrounds it with limits. Article 97 of the Uniform......
  11. UCMJ Article 119b: Child Endangerment A young child depends entirely on the adults responsible for its care, and military law imposes criminal liability when a service member with that responsibility places a child at risk.......
  12. UCMJ Article 134: Indecent Language Words can become a court-martial offense when they cross from crude into legally indecent. Under the General Article of the Uniform Code of Military Justice, a service member who communicates......
  13. UCMJ Article 128: Assault A shove in a barracks hallway, a fist raised during a heated argument, a weapon pointed at another service member, a chokehold that cuts off a person's breath: each of......
  14. UCMJ Article 107: Making False Official Statements A military justice system runs on the reliability of what its members say and sign. A duty log, a sworn statement to an investigator, a travel voucher, a maintenance entry:......
  15. UCMJ Article 90: Willfully Disobeying a Superior Commissioned Officer A lawful order from a superior commissioned officer carries the force of law, and refusing to obey it is one of the most direct challenges to military authority. Article 90......