Drug cases in the military often involve more than a single act of use or possession. A service member who tries to get someone else to use drugs, or who urges a fellow member to join in, may face charges that go beyond the drug statute itself. Two articles of the Uniform Code of Military Justice come into play: Article 112a, which criminalizes drug offenses directly, and Article 82, which criminalizes soliciting another to commit an offense. The question of whether an attempt to solicit drug use can be charged under both requires a careful look at what each article actually punishes and at the rules against piling on duplicative charges.
What Article 112a covers
Article 112a punishes the wrongful use, possession, manufacture, distribution, importation, exportation, or introduction of controlled substances. The listed substances include opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana, along with any compound or derivative and any substance on the controlled substance schedules. The offense has two essential components for any given act: the act itself and its wrongfulness, meaning that it was done without legal justification or authorization.
What Article 112a does not directly punish is the act of asking or encouraging someone else to use drugs. The article reaches conduct like using or distributing, not the inchoate step of soliciting another person to do so. That gap is exactly where Article 82 enters.
What Article 82 covers after the 2019 revision
Article 82, codified at 10 U.S.C. 882, is the solicitation statute. Following the changes that took effect at the start of 2019, the article is broad. Under subsection (a), any person subject to the code who solicits or advises another to commit an offense under the code, other than the specific offenses listed in subsection (b), may be punished as a court-martial directs. Subsection (b) carries enhanced treatment for soliciting the most serious offenses such as desertion, mutiny, sedition, and misbehavior before the enemy.
Because a drug offense under Article 112a is an offense under the code and is not one of the enumerated offenses in subsection (b), soliciting another to commit a drug offense falls squarely within Article 82(a). The elements are that the accused solicited or advised another to commit an offense under the code, and that the accused did so with the intent that the offense actually be committed. The solicitation is complete when it is made. It does not matter whether the person solicited agreed, and it does not matter whether any drug use ever followed.
Where “attempt” fits
The title asks specifically about attempts to solicit drug use, and the word attempt deserves precision because it can describe two different things.
If the conduct is a completed solicitation, in other words the accused actually asked or urged someone to use drugs, then the offense is solicitation under Article 82, even though no drug use resulted. Solicitation is itself an inchoate crime, so a solicitation that produces no use is still a complete violation of Article 82. There is no need to resort to an attempt theory in that situation.
If the conduct falls short of a completed solicitation, for example the accused took a substantial step toward soliciting but never actually communicated the request, then attempt comes into play through Article 80, the general attempt statute, rather than through a freestanding Article 82 attempt. Either way, the conduct can in principle be charged, but the correct article depends on whether the solicitation was actually made.
Can the government charge both Article 112a and Article 82?
In many real cases the answer is yes, because the two articles punish different conduct. Suppose a service member both uses drugs personally and urges another member to use drugs. The personal use is an Article 112a offense, and the urging is an Article 82 solicitation. Those are distinct acts with distinct victims and distinct elements, and charging both is appropriate.
The harder situation is when the government tries to capture a single course of conduct under both articles. Military law forbids unreasonable multiplication of charges and bars convictions that are multiplicious, meaning that one offense is necessarily included in another or that a single wrongful act is being punished twice. Under the elements test the courts apply, two offenses are separate if each requires proof of a fact the other does not. Solicitation under Article 82 requires proof that the accused urged another person to act with the intent that the offense be committed, a fact not required for the soliciting member’s own drug use. A direct drug offense under Article 112a requires proof of the accused’s own use, possession, or distribution, a fact not required for solicitation. Because each contains an element the other lacks, they are generally treated as separate offenses.
The defense still has tools. Where the government charges the same single act under both theories, counsel can move to dismiss one charge as an unreasonable multiplication of charges, asking the military judge to consider whether the prosecution is exaggerating the accused’s criminality by stacking overlapping counts. Even when separate convictions are permitted, the judge may merge offenses for sentencing so the accused is not punished twice for what is essentially one wrong.
The practical picture
Soliciting another to use drugs is chargeable under Article 82(a) because a drug offense is an offense under the code and is not one of the enumerated serious offenses carved out by the statute. A completed request is a complete solicitation regardless of whether anyone actually uses; conduct that stops short of an actual request is reached through the attempt statute, Article 80. Charging both Article 112a and Article 82 is proper when the accused both committed a drug offense and separately urged someone else to do so, because each article requires proof the other does not. The limit comes from the rules against multiplicity and unreasonable multiplication of charges, which a defense can invoke when the government tries to punish a single act twice.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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