UCMJ Article 132: Retaliation

Article 132 punishes using a personnel action to retaliate against someone for reporting a crime or making a protected communication, or to discourage such a report. Threatening the action is enough; the accused need not have intended to carry it out. The maximum is a dishonorable discharge, forfeiture of all pay and allowances, and 3 years of confinement. For offenses committed after December 27, 2023, it is one of the offenses under special trial counsel’s authority.

Two intents in § 932(a)

10 U.S.C. § 932(a) reaches a person who “wrongfully takes or threatens to take an adverse personnel action against any person,” or “wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person,” with either of two intents:

• to retaliate against any person for reporting or planning to report a criminal offense, or for making or planning to make a protected communication; or
• to discourage any person from reporting a criminal offense or making or planning to make a protected communication.

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 89.b, treats these as two offenses: retaliation and discouraging a report. Before January 1, 2019, “Article 132” was frauds against the United States, which is now Article 124. The retaliation offense was added by the Military Justice Act of 2016 (Pub. L. 114-328, § 5450).

What counts as protected

A protected communication under § 932(b) is a lawful communication to a Member of Congress or an Inspector General, or a communication to a covered individual or organization (the recipients listed in 10 U.S.C. § 1034(b)(1)(B)) in which a service member complains of, or discloses information the member reasonably believes is evidence of, a violation of law or regulation, “including a law or regulation prohibiting sexual harassment or unlawful discrimination,” or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

A criminal offense in this article includes violations of the UCMJ, the United States Code, or state law (¶ 89.c(5)). Reporting a state-law crime off post is protected in the same way as reporting a UCMJ offense.

Who can commit it, and what a personnel action is

Under ¶ 89.c(1), the offense may be committed by any person subject to the UCMJ “with the authority to initiate, forward, recommend, decide, or otherwise act on a favorable or adverse personnel action.” For example, a rater who only recommends, or a supervisor who only forwards a packet, can be within reach.

A personnel action (¶ 89.c(2)) is any action that affects or could affect a service member’s position or career, including promotion; disciplinary or other corrective action; transfer or reassignment; performance evaluations; decisions on pay, benefits, awards, or training; relief and removal; separation; discharge; and referral for mental health evaluation. Actions affecting civilian employees are covered as well.

Intent separates retaliation from command

The action is wrongful when it is used “for the purpose of reprisal, rather than for purposes of lawful personnel administration” (¶ 89.c(6)), and the Manual states that the offense “does not prohibit the lawful and appropriate exercise of command authority to discipline or reward Servicemembers” (¶ 89.c(1)). An evaluation that reflects actual performance is not retaliation because it follows a complaint; the same evaluation written to punish the complaint is.

For threats, ¶ 89.c(4) sets two limits. Proof that the accused actually intended to take the action is not required. But a statement made in jest or for an innocent or legitimate purpose is not the offense, and neither is a threat to do something unlawful that does not involve a personnel action. Such a threat may fall under Article 115, communicating threats.

Article 132 maximum and special trial counsel

Under ¶ 89.d, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. That ceiling is set by the President under 10 U.S.C. § 856(a); the statute itself says only “as a court-martial may direct.”

Retaliation is itself a covered offense (10 U.S.C. § 801(17)(A)). For retaliation committed after December 27, 2023, the decisions to refer, dismiss, or enter a plea agreement are reserved to a special trial counsel, who also decides whether the report is covered (10 U.S.C. § 824a(c)).

Other retaliation rules

The Manual notes that the Secretary of Defense and the service secretaries may prohibit other categories of retaliatory action by regulation, and those violations may be punished under Article 92 (¶ 89.c(7)). The administrative whistleblower protections in 10 U.S.C. § 1034 operate alongside Article 132; a criminal charge does not replace them. Conduct meant to influence or impede a pending case, rather than a personnel action, is obstructing justice under Article 131b.

Sources

• 10 U.S.C. § 932, Article 132, Retaliation (Cornell LII)
• 10 U.S.C. § 801, Article 1, Definitions, paragraph (17) (Cornell LII)
• 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 89

General information about military law, not legal advice for any individual case.