No, a service member cannot be prosecuted for attempted larceny under Article 80, UCMJ, based solely on their criminal intent and acts of mere preparation. The law requires the government to prove that the accused took a “substantial step” towards the commission of the crime, which must be more than simple preparation. This overt act must be a direct movement toward committing the larceny and must be strongly corroborative of the accused’s criminal intent. The line between preparation and a substantial step is a critical legal distinction.
For example, thinking about stealing from a supply room and even drawing a diagram of it would be considered mere preparation. However, if the service member, after hours, uses a key to unlock the supply room door and enters, that would be a substantial step toward the commission of larceny. This act is a direct movement towards the crime and clearly corroborates the intent to steal. The law requires conduct that goes beyond the point where a person could still plausibly claim they had abandoned their criminal plan.
A military defense attorney defending against an attempt charge will focus their entire case on this distinction. They will argue that their client’s actions, while perhaps suspicious, never crossed the legal threshold from preparation to perpetration. They would contend that the government’s evidence only shows that their client was thinking about the crime but had not yet taken a direct step to commit it. If the court-martial panel agrees that a “substantial step” was not taken, they must find the accused not guilty of the attempt charge.