UCMJ Article 82: Solicitation
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Soliciting someone to commit almost any UCMJ offense carries a fixed ceiling: dishonorable discharge, forfeiture of all pay and allowances, and 10 years of confinement, or the solicited offense’s own maximum if that is lower. It makes no difference whether the other person ever acts. Five solicitations work differently: espionage, which allows any punishment except death, and desertion, mutiny, sedition, and misbehavior before the enemy, where the punishment depends on whether the solicited offense was committed or attempted.
Two subsections of § 882
Any person subject to this chapter who solicits or advises another to commit an offense under this chapter (other than an offense specified in subsection (b)) shall be punished as a court-martial may direct.
Source: 10 U.S.C. § 882(a).
Subsection (b) covers soliciting or advising another to violate Article 85 (desertion), Article 94 (mutiny or sedition), or Article 99 (misbehavior before the enemy). If the offense solicited is attempted or committed, the accused “shall be punished with the punishment provided for the commission of the offense”; if not, as a court-martial may direct. The article took this two-subsection form in the Military Justice Act of 2016 (Pub. L. 114-328, § 5403).
What the government must prove
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 6.b, lists two elements: the accused solicited or advised a certain person or persons to commit a certain offense under the UCMJ, and did so with the intent that the offense actually be committed. When the solicited offense was committed or attempted, a third element is added: that it was committed or attempted “as the proximate result of the solicitation.”
The intent element is what separates a solicitation from talk. Words spoken without the intent that the offense actually be committed are not a solicitation, however crude or alarming they sound.
When the offense is complete
Solicitation is an “instantaneous offense” (¶ 6.c(1)). It is complete when the request or advice is made with the required intent. “It is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advice.” A refusal, a report to authorities, or the listener turning out to be an investigator does not undo it.
The means can be anything: “Any act or conduct which reasonably may be construed as a serious request or advice to commit any offense under the UCMJ may constitute solicitation,” and the accused may act through other people (¶ 6.c(2)).
Some offenses already contain solicitation as an element. When the act of soliciting is itself a separate offense, the Manual directs that it be charged as that offense; its examples are pandering and obstructing justice (¶ 6.c(3)).
The 10-year and 15-year ceilings
The outcome of the solicitation matters for only some offenses. Under ¶ 6.d of the Manual:
| Offense solicited | If committed or attempted | If not committed or attempted |
|---|---|---|
| Espionage (Art. 103a) | Any punishment other than death | Any punishment other than death |
| Desertion (Art. 85), mutiny or sedition (Art. 94), misbehavior before the enemy (Art. 99) | The punishment provided for the offense itself | Dishonorable discharge, forfeiture of all pay and allowances, and 15 years, or the offense's maximum if lower |
| Any other UCMJ offense | Dishonorable discharge, forfeiture of all pay and allowances, and 10 years, or the offense's maximum if lower | Same |
The third row covers every offense not named in the first two, and it has two consequences. Soliciting a murder caps confinement at 10 years even if the murder is carried out by the person solicited; the person who solicits may separately face liability as a principal under Article 77 for the completed crime. And soliciting a minor offense can never exceed that offense’s own maximum.
For the second row, “the punishment provided for the offense itself” means the maximums for desertion under Article 85, mutiny or sedition under Article 94, or misbehavior before the enemy under Article 99, which include death in time of war or, for mutiny, sedition, and misbehavior before the enemy, at any time.
A solicitation to commit a covered offense, such as an Article 120 offense, is itself a covered offense under 10 U.S.C. § 801(17)(C).
Solicitation, conspiracy, and attempt
Soliciting another person is not an attempt (¶ 4.c(5)), because an attempt under Article 80 requires the accused’s own act beyond preparation. If the person solicited agrees and one of them takes an overt act toward the plan, the events can support conspiracy under Article 81, which requires that agreement and act and is punished up to the object offense’s maximum.
Sources
- 10 U.S.C. § 882, Article 82, Soliciting commission of offenses (Cornell LII)
- 10 U.S.C. § 801, Article 1, Definitions, paragraph (17) (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 4.c(5) and ¶ 6
General information about military law, not legal advice for any individual case.