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 Justice addresses that earlier stage. It punishes the service member who wrongfully solicits or advises another to commit an offense, treating the request as a completed wrong in its own right. The solicited offense need never be attempted or carried out, because the harm the article targets is the effort to set misconduct in motion.

This framing reflects a settled principle of military criminal law. Encouraging another person to break the law spreads risk through a unit, tests loyalties, and undermines the trust on which order depends. Article 82 allows that danger to be confronted at the point of solicitation rather than waiting for the solicited crime to occur. The article also singles out certain especially grave offenses for distinct treatment, recognizing that soliciting them strikes directly at the cohesion of the force.

The statutory text

Article 82 is codified at 10 U.S.C. 882. As restructured under the Military Justice Act of 2016, the statute is divided into two subsections. Subsection (a) addresses general solicitation: any person subject to the Code who “solicits or advises another to commit an offense under this chapter” is punished as a court-martial may direct, whether or not the offense is attempted or committed. Subsection (b) addresses solicitation of specific enumerated offenses, soliciting or advising another to commit desertion under Article 85, mutiny or sedition under Article 94, or misbehavior before the enemy under Article 99. For these, the statute distinguishes between cases where the offense is attempted or committed and cases where it is not.

Elements the government must prove

For general solicitation under subsection (a), the prosecution must establish beyond a reasonable doubt:

  1. That the accused solicited or advised a certain person or persons to commit a specific offense under the Code.
  2. That the accused did so with the intent that the offense actually be committed.
  3. That, depending on how the offense is charged, the solicitation was wrongful or, under the circumstances, was prejudicial to good order and discipline or service-discrediting.

The intent element is central. The government must show that the accused genuinely intended the solicited offense to be carried out. A statement made in jest, sarcasm, or without serious purpose does not satisfy this requirement.

The solicitation is complete on communication

A defining feature of Article 82 is that the offense is complete the moment the solicitation is communicated with the required intent. The person solicited need not agree, need not act, and may refuse outright or report the request. None of that defeats liability, because the wrong lies in the act of soliciting rather than in any response to it. Solicitation may be spoken, written, or transmitted electronically; the medium does not matter so long as the message conveys the urging.

Maximum punishment

The maxima for Article 82 turn on what was solicited. For general solicitation under subsection (a), the Manual for Courts-Martial generally ties the maximum to the offense solicited, capped at the punishment authorized for that underlying offense, with the death penalty never available for the solicitation itself.

For the enumerated offenses under subsection (b), the structure is explicit. If the solicited offense is attempted or committed, the accused faces the same maximum punishment as one who actually commits that offense. If it is neither attempted nor committed, the Manual sets specific ceilings. Solicitation to commit desertion carries a maximum of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for three years. Solicitation to commit mutiny, sedition, or misbehavior before the enemy carries a maximum of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for ten years.

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

Distinctions from conspiracy and attempt

Solicitation is often compared with conspiracy under Article 81 and attempt under Article 80, but each reaches a different stage of misconduct. Solicitation requires only that one person urge another to commit an offense with intent that it be done; no agreement and no act by the other person is needed. Conspiracy requires an actual agreement between two or more people plus an overt act in furtherance of it. Attempt requires the accused personally to take a substantial step beyond mere preparation toward committing the offense. A single sequence of events can move from solicitation to conspiracy to attempt, but the elements and proof differ at each step.

Defenses

The most common defenses negate intent. Evidence that the words were a joke, were misunderstood, or lacked any serious purpose can prevent the government from proving that the accused intended the offense to be committed. A second line of defense addresses wrongfulness: a communication made within lawful authority, such as a sanctioned training exercise or the lawful execution of duties, may not be wrongful at all.

Entrapment may be raised where government agents originated the criminal design and induced an otherwise unwilling person to solicit. The defense requires that the inducement come from the government rather than from the accused’s own predisposition, and military courts examine such claims closely.

Frequently asked questions

Does the solicited crime have to be committed? No. The offense is complete once the solicitation is communicated with the required intent, regardless of whether the other person agrees or acts.

What offenses can be solicited under Article 82? Subsection (a) reaches any offense under the Code. Subsection (b) singles out desertion, mutiny, sedition, and misbehavior before the enemy for distinct treatment.

Can the death penalty be imposed for solicitation? No. The solicitation itself cannot be punished by death, even where the solicited offense is capital.

How is solicitation different from conspiracy? Solicitation needs only the act of urging with intent. Conspiracy needs an agreement plus an overt act. Solicitation can occur even if no one agrees.

Does the method of solicitation matter? No. A solicitation may be verbal, written, or electronic. What matters is that the urging is communicated with intent that the offense be committed.

Sources

10 U.S.C. 882, Article 82, Soliciting commission of offenses: https://www.law.cornell.edu/uscode/text/10/882

10 U.S.C. 882 via U.S. House Office of the Law Revision Counsel: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section882&num=0&edition=prelim

Manual for Courts-Martial, United States, Part IV, Punitive Articles: 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.

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