Article 82 of the Uniform Code of Military Justice (UCMJ) punishes the act of asking, advising, or urging another person to commit a military offense. Long known as the solicitation article, it is codified at 10 U.S.C. section 882. Following the 2019 reorganization of the UCMJ, the article retained its number but its statutory heading now reads “Soliciting commission of offenses,” and the provision was restructured into two subsections. This guide explains what the article covers, the elements of the offense, the special treatment of certain grave offenses, the defenses that arise, and the punishment structure.
The statutory text
The article is now divided into two subsections.
Subsection (a) provides: “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.”
Subsection (b) provides: “Any person subject to this chapter who solicits or advises another to violate section 885 of this title (article 85), section 894 of this title (article 94), or section 899 of this title (article 99)” is then subject to two rules: if the offense solicited or advised is attempted or committed, the solicitor “shall be punished with the punishment provided for the commission of the offense”; and if the offense is not attempted or committed, the solicitor “shall be punished as a court-martial may direct.”
The articles singled out in subsection (b) are desertion (Article 85, section 885), mutiny or sedition (Article 94, section 894), and misbehavior before the enemy (Article 99, section 899). These are among the most serious offenses against military order, which is why soliciting them receives special treatment.
What solicitation is
The core of solicitation is the act of seriously asking, advising, counseling, commanding, or otherwise urging another person to commit an offense, accompanied by the intent that the offense actually be committed. The solicitation may be by any means: spoken words, written words, gestures, or any other form of communication that conveys the request. It does not matter whether the person solicited agrees, acts, or even responds. The crime is complete when the solicitation is made with the required intent.
This is what makes solicitation an inchoate offense, meaning a crime that punishes conduct pointed toward a future offense rather than the completed offense itself. It is closely related to, but distinct from, attempt under Article 80 and conspiracy under Article 81. Attempt requires the accused’s own overt act toward committing the crime. Conspiracy requires an agreement between two or more persons plus an overt act. Solicitation requires neither agreement nor a responsive act by anyone else; it punishes the act of urging another to commit the offense.
The elements
For a general solicitation under subsection (a), the government must prove beyond a reasonable doubt that the accused solicited or advised a certain person or persons to commit a particular offense under the UCMJ, and that the accused did so with the intent that the offense actually be committed. The serious request and the criminal intent are the two pillars of the offense.
The intent element deserves emphasis. Solicitation is a specific-intent offense. The accused must genuinely intend that the solicited offense be carried out. Idle talk, a joke, a hypothetical discussion, a vague expression of frustration, or empty bluster does not amount to solicitation, because the intent that the offense be committed is absent. The line between a serious solicitation and mere words is frequently the central dispute in these cases.
For the offenses listed in subsection (b), the elements of the solicitation are similar, but the consequences differ depending on whether the solicited offense was attempted or committed, as described below.
The two-tier punishment structure
Article 82 does not set a single fixed maximum. Instead the punishment depends on what was solicited and what happened next.
Under subsection (a), the maximum punishment for soliciting a UCMJ offense is generally tied to the offense solicited. The traditional rule, reflected in the Manual for Courts-Martial, has been that solicitation is punished as the solicited offense would be punished, subject to limits. Because the punishment is keyed to the underlying offense, soliciting a minor offense carries a smaller maximum than soliciting a grave one.
Under subsection (b), the structure is explicit and severe. If a person solicits desertion, mutiny, sedition, or misbehavior before the enemy, and that offense is attempted or actually committed, the solicitor is punished with the same punishment provided for committing the offense itself. If the solicited offense is not attempted or committed, the solicitor is still punished as a court-martial may direct. The reason for this elevated treatment is the extraordinary danger these offenses pose to military discipline and operations, particularly in combat. A person who urges others to mutiny or to abandon their posts before the enemy is treated as gravely as one who does so.
Because maximum punishments under the UCMJ have been affected by the 2019 sentencing reforms and by further changes effective for offenses committed on or after December 27, 2023, the precise maximum in any given case should be confirmed against the controlling edition of the Manual for Courts-Martial.
Defenses that commonly arise
The most common defense is the absence of specific intent. Because solicitation requires that the accused actually intend the offense to be committed, evidence that the words were spoken in jest, frustration, or hypothetical discussion, without genuine intent that anyone act, can defeat the charge.
Closely related is the argument that the communication was not a serious request at all. Casual remarks, venting, or rhetorical statements may fall short of the urging, advising, or counseling the statute requires.
The defense may also contest the content of what was communicated, particularly where the evidence of the solicitation is a remembered conversation rather than a recording or writing. Whether the accused actually urged a specific offense, and with what words, can be a genuine factual dispute.
It is not a defense that the person solicited refused, ignored the request, or never acted. The offense is complete upon the solicitation made with intent, regardless of the listener’s response.
Practice considerations
For the defense, the battleground is intent and the seriousness of the request. Reconstructing the full context of the communication, including tone, setting, and surrounding statements, is essential to showing that what the government characterizes as a solicitation was something less.
For the government, the task is to prove that the accused made a genuine request that a specific offense be committed and intended that it be carried out. Vague or ambiguous statements, standing alone, are difficult to elevate to criminal solicitation without context that supplies the intent.
Bottom line
Article 82, UCMJ, codified at 10 U.S.C. section 882 and now titled “Soliciting commission of offenses,” punishes urging another person to commit a UCMJ offense with the intent that it be carried out. The offense is complete the moment the serious solicitation is made; no agreement or responsive act is required. Soliciting desertion, mutiny or sedition, or misbehavior before the enemy receives heightened treatment under subsection (b), up to the punishment for the underlying offense itself. The decisive issue in most cases is specific intent, the difference between a genuine criminal solicitation and mere words. Anyone facing such a charge should focus the analysis there and confirm the applicable maximum punishment against the current Manual for Courts-Martial.
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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