A failed effort to tamper with evidence can expose a service member to charges under both Article 80 and Article 134 of the Uniform Code of Military Justice, and the two can be pleaded together. Article 80 punishes attempts, and Article 134 supplies the underlying offenses, including obstructing justice and the broader prohibition on conduct prejudicial to good order and discipline or service-discrediting. Whether both charges may survive at the same time, however, is governed by doctrines that limit duplicative charging. The practical answer is that concurrent charging is permissible in principle but is closely scrutinized for multiplicity and unreasonable multiplication of charges.
How attempts work under Article 80
Article 80 makes it an offense to attempt to commit any offense under the code. The elements are that the accused did a certain overt act, that the act was done with the specific intent to commit a certain offense, that the act amounted to more than mere preparation, and that the act apparently tended to effect the commission of the intended offense. Military law applies a substantial step standard. Planning, devising, or arranging the means to tamper is mere preparation. A direct movement toward actually altering, destroying, or concealing the evidence is the kind of substantial step that completes an attempt even if the effort fails.
A failure to complete the tampering does not defeat an attempt charge. That is the entire point of Article 80. The offense exists precisely to reach conduct that fell short of the intended result. Even factual impossibility, where the accused could not have succeeded because the facts were not as they believed, generally is no defense to an attempt, because liability turns on the accused’s intent and conduct rather than on whether success was possible. A service member who tries to wipe a device that turns out to be empty, or to destroy a record that had already been copied, can still be guilty of an attempt.
How evidence tampering arises under Article 134
Article 134 is the general article. It reaches conduct that is prejudicial to good order and discipline or that brings discredit upon the armed forces, and it incorporates a number of specifically enumerated offenses. Obstructing justice is one of them. That offense generally requires a wrongful act done with the intent to influence, impede, or obstruct the due administration of justice in a matter in which criminal proceedings were pending or were likely. Tampering with or destroying evidence relevant to an investigation is a classic example. Concealing documents, deleting communications, or altering physical evidence to thwart an investigation can support an Article 134 obstruction theory.
Depending on the facts, a completed act of tampering might be charged as a completed Article 134 offense. When the tampering fails, the government may instead charge an attempt under Article 80 to commit the Article 134 offense, because the underlying obstruction or other Article 134 conduct was the object the accused was attempting to accomplish.
Can both be charged at the same time?
The starting point is that the government has discretion to plead in the alternative and to charge separate offenses arising from the same conduct. So a charge sheet may contain both an Article 80 attempt and an Article 134 specification stemming from the same episode. Nothing categorically bars listing both. But two related doctrines constrain what can ultimately stand.
The first is multiplicity. Charges are multiplicious when one offense is, as a matter of law, included within another, such that punishing both would violate the constitutional protection against double jeopardy. Courts apply an elements test to decide whether each offense requires proof of a fact the other does not. If an attempt and a completed Article 134 offense are simply two labels for the same criminal act with no distinct elements, a multiplicity problem arises and one charge may have to be dismissed.
The second, and broader, doctrine is unreasonable multiplication of charges. Even when offenses are not multiplicious as a matter of law, military courts and reviewing authorities can address prosecutorial overreach by applying a standard of reasonableness. This doctrine asks whether the government has piled on charges to exaggerate the criminality of a single act. It can be applied to findings, requiring consolidation or dismissal of redundant charges, or to sentencing, limiting the punishment exposure when multiple charges describe essentially one wrong. The relevant rules for raising these issues are found in the Rules for Courts-Martial, including the provisions governing motions and the prohibition on unreasonable multiplication.
How the doctrines apply to failed tampering
Putting these pieces together, a single failed attempt to tamper with evidence usually represents one criminal act. Charging it both as an Article 80 attempt and as an Article 134 offense for the same conduct invites a defense motion. If the completed Article 134 offense was never accomplished because the tampering failed, the natural and proper charge is the Article 80 attempt to commit the Article 134 offense, not a completed Article 134 specification for an act that did not occur. Charging both a completed offense and an attempt to commit that same offense for one failed act is the kind of redundancy the multiplicity and unreasonable-multiplication doctrines are designed to police.
There are, however, situations where distinct charges legitimately coexist. If the accused engaged in separate acts, for example a completed false statement to investigators under one theory plus a failed effort to destroy a phone under another, the charges may rest on different conduct with different elements and survive together. The analysis is fact specific and depends on whether each charge requires proof of something the others do not and whether, taken together, the charges reasonably reflect distinct wrongs.
Bottom line
Failed attempts to tamper with evidence can be prosecuted under Article 80 as attempts to commit an Article 134 offense such as obstructing justice, and the government may plead both articles arising from the same incident. Concurrent charges are not automatically barred, but they are subject to the multiplicity doctrine and to the prohibition on unreasonable multiplication of charges. Where the tampering failed, an attempt under Article 80 is generally the appropriate vehicle, and charging the same single act twice is likely to be challenged and consolidated. Because the outcome turns on the elements involved and on how many distinct acts occurred, a service member facing such charges should consult qualified military defense counsel to test whether the charges are properly separate or impermissibly duplicative.
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.
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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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