UCMJ Article 80: Attempts
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An attempt under Article 80 borrows the maximum punishment of the offense attempted, with two hard limits: no death sentence, and no confinement beyond 20 years for any attempt except attempted murder. Attempted rape and attempted sexual assault are not exceptions to the 20-year limit; what they keep is the completed offense’s mandatory minimum of dismissal or dishonorable discharge.
The statutory definition
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, is an attempt to commit that offense.
Source: 10 U.S.C. § 880(a).
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 4.b, breaks this into four elements: an overt act; done with the specific intent to commit a certain offense under the UCMJ; amounting to more than mere preparation; and apparently tending to bring about the intended offense.
Where preparation ends
The Manual defines preparation as “devising or arranging the means or measures necessary for the commission of the offense.” The overt act must go past that point and be “a direct movement toward the commission of the offense” (¶ 4.c(2)). Its own illustration: buying matches intending to burn a haystack is not attempted arson, but applying a burning match to the haystack is, even if nothing catches fire.
Two consequences follow from the same paragraph. The overt act does not have to be the last act needed to complete the crime. And: “Failure to complete the offense, whatever the cause, is not a defense.” Once intent and a qualifying act coincide, the attempt is complete; a later decision not to finish is a defense only in the narrow case described below.
Impossibility and abandonment
Factual impossibility is not a defense. A person who acts in a way that would be the offense if the circumstances were as that person believed is guilty of the attempt (¶ 4.c(3)). The Manual’s examples are pulling the trigger on a gun that, unknown to the shooter, will not fire, and reaching into an empty pocket to steal a wallet.
Voluntary abandonment is a defense, but a narrow one. It applies only when the person “voluntarily and completely abandoned the intended crime, solely because of the person’s own sense that it was wrong,” before the crime was completed (¶ 4.c(4)). It is unavailable if the abandonment came, even in part, from fear of detection or apprehension, a decision to wait for a better opportunity, inability to finish, or unexpected difficulty or resistance. Even a successful abandonment defense leaves any completed lesser offense in place: the Manual notes that a person who abandons an armed robbery may still be guilty of assault with a dangerous weapon.
The 20-year cap and the mandatory-minimum exception
The statute says only that an attempt is punished “as a court-martial may direct, unless otherwise specifically prescribed” (§ 880(b)). The limits are in ¶ 4.d of the Manual:
| Rule | What it means |
|---|---|
| Same maximum as the completed offense | An attempted larceny carries the larceny maximum for the property and value involved |
| No death penalty | Even where the completed offense is capital |
| Confinement capped at 20 years | For every attempt except attempted murder, even if the completed offense allows life |
| Mandatory minimums do not apply | Except attempts of rape or sexual assault under Article 120(a) or (b), and rape or sexual assault of a child under Article 120b(a) or (b) |
The two exceptions answer different questions. Attempted murder is the only attempt whose confinement can exceed 20 years, because murder under Article 118 is punishable by death or confinement for life, and the attempt keeps the life ceiling. The Article 120 and 120b attempts are the only ones that carry a mandatory minimum, which 10 U.S.C. § 856(b)(2)(E) sets at dismissal or dishonorable discharge; their confinement is still capped at 20 years. The Article 120 rape and sexual assault maximums show how far the cap reduces the exposure for an attempt.
For a case in which every finding of guilty is for an offense committed after December 27, 2023, the military judge, rather than the members, determines the sentence at a general or special court-martial (10 U.S.C. § 853(b)).
Attempts charged under other articles
Some articles define their own attempt offense, and the Manual directs that those attempts be charged under that article rather than Article 80 (¶ 4.c(6)): desertion (Art. 85), mutiny or sedition (Art. 94), subordinate compelling surrender (Art. 100), espionage (Art. 103a), aiding the enemy (Art. 103b), death or injury of an unborn child (Art. 119a), and assault (Art. 128). An “attempted assault” is not charged as an Article 80 attempt, because an assault under Article 128 already includes an attempt to do bodily harm.
Attempts to violate a lawful general order or regulation go the other way: they are charged under Article 80, and the government need not prove the accused intended to violate the order, only that the accused intended to commit the prohibited conduct (¶ 4.c(7)). The underlying order offense is explained under Article 92, failure to obey an order or regulation.
When the offense was actually completed
Section 880(c) allows a conviction for an attempt “although it appears on the trial that the offense was consummated.” An attempt charge therefore does not fail because the evidence proves more than an attempt. The rules on when a court-martial may return findings on a lesser or included offense instead of the offense charged are in Article 79, lesser included offenses.
Soliciting another person to commit an offense is not an attempt (¶ 4.c(5)); it is a separate offense under Article 82, solicitation. An agreement with another person plus an overt act is conspiracy under Article 81, which can rest on a far more preliminary act than an attempt requires.
Sources
- 10 U.S.C. § 880, Article 80, Attempts (Cornell LII)
- 10 U.S.C. § 856, Article 56, Sentencing (Cornell LII)
- 10 U.S.C. § 853, Article 53, Findings and sentencing (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 4
General information about military law, not legal advice for any individual case.