The clearest way to answer this is to separate two ideas that the question blends together. Solicitation under Article 82 is a complete, freestanding offense the moment a serious request to commit a crime is made. Conspiracy under Article 81 is a different offense built on an agreement plus an overt act. An attempt to form a conspiracy, which is what attempted conspiracy means, is a more unusual theory that would combine the law of attempt with the law of conspiracy. The practical line between solicitation and a failed effort to reach a criminal agreement turns on what the accused did and whether anyone agreed.
Solicitation under Article 82
Article 82, UCMJ, punishes soliciting or advising another to commit an offense. The core of the offense is the communication itself. The government must prove that the accused, with the specific intent that an offense actually be committed, made a serious request, advice, or enticement to another person to commit a UCMJ offense. Two features define it.
First, solicitation is a specific-intent crime. The accused must genuinely intend that the person solicited carry out the underlying offense. A statement that is mere bluster, venting, or a passing remark does not qualify unless it reasonably can be construed as a serious request or advice to commit the crime, made with that intent.
Second, solicitation is complete upon communication. It does not matter whether the person solicited agrees, refuses, or does anything at all. The crime is finished the instant the serious request is communicated with the required intent. There is no need for an agreement, and there is no need for any further act by anyone. This is the single most important distinguishing feature.
Conspiracy under Article 81
Article 81, UCMJ, punishes conspiracy. It requires two distinct things beyond mere words. First, there must be an agreement between the accused and at least one other person to commit a UCMJ offense. A meeting of the minds is essential; one person cannot conspire alone. Second, while the agreement exists and the accused remains a party to it, the accused or a co-conspirator must perform an overt act to effect the object of the agreement. The overt act need not itself be criminal; it simply must be a step taken to advance the unlawful plan.
So conspiracy goes a measurable distance further than solicitation. Solicitation is a one-way communication; conspiracy is a two-way (or multi-party) agreement that has begun to move toward execution through an overt act. A solicitation that succeeds, meaning the other person agrees and an overt act follows, can ripen into a conspiracy, at which point both theories may be available on the same facts.
Where attempted conspiracy fits
Attempted conspiracy is the theory that a person tried, but failed, to form a criminal agreement. It would draw on the law of attempt, which generally requires a specific intent to commit the offense and an overt act that amounts to a substantial step toward it, going beyond mere preparation. Applied to conspiracy, the idea would be that the accused intended to enter a criminal agreement and took a substantial step toward forming it, yet the agreement never came together because the other person refused or the effort otherwise collapsed.
This is a doctrinally awkward theory, and it is rarely the right tool, because the conduct it describes is almost always solicitation. When a person reaches out to another and proposes a crime but no agreement results, the law already has a precise offense for that exact situation: solicitation under Article 82. The serious request to commit the crime is itself the completed offense, regardless of whether the agreement the accused hoped for ever formed. There is generally no need to stretch the law of attempt over a non-existent conspiracy when Article 82 squarely covers the failed solicitation.
The decisive distinctions
Three questions separate the theories on any given set of facts.
Did an agreement form? If yes, with an overt act, the offense is conspiracy under Article 81. If no agreement formed, conspiracy is not complete.
Was a serious request to commit the crime communicated with intent that it be done? If yes, solicitation under Article 82 is complete the moment the request was made, whether or not anyone agreed and whether or not anything else happened.
Is anyone trying to charge an effort to form an agreement that never materialized? That is the attempted-conspiracy concept, and in practice it almost always collapses into the completed offense of solicitation, because the failed proposal is exactly what Article 82 punishes.
Practical consequences
The distinctions matter for charging and defense. Because solicitation is complete on communication, the absence of any agreement or follow-through is not a defense to Article 82; the defense instead targets intent and whether the words were a serious request rather than jest or hyperbole. For conspiracy, the defense can attack the existence of a genuine agreement or the sufficiency of the overt act, since both are required elements. And where the government floats an attempted-conspiracy theory, the defense can argue that the conduct, if anything, is solicitation, so that the elements actually litigated should be those of Article 82.
Bottom line
Solicitation under Article 82 is a completed offense that occurs the instant a person, intending a crime to be carried out, makes a serious request or advice to another to commit it, with no agreement and no further act required. Conspiracy under Article 81 requires an actual agreement between two or more people plus an overt act in furtherance of it. An attempted conspiracy, an unsuccessful effort to form such an agreement, is a strained theory because the failed proposal it describes is precisely the conduct that Article 82 solicitation already punishes as a complete crime. The deciding factors are whether an agreement formed and whether a serious request was communicated.
Disclaimer
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