Can a member be prosecuted for soliciting someone to lie to a military investigator?

Sometimes the most serious exposure in a military case does not come from the original allegation at all. It comes from what a member does after the fact, when the member tries to steer the investigation by getting someone else to mislead the investigators. A common version is asking a friend, subordinate, or witness to tell investigators something false. The question is whether merely asking another person to lie, even if that person never does, can itself be a crime. Under the Uniform Code of Military Justice the answer is yes. Soliciting someone to lie to a military investigator can be prosecuted under more than one article, and the request alone can be enough.

Several articles can reach the same conduct

The conduct of urging another person to lie to investigators does not map onto a single offense. Depending on the facts and the prosecutor’s theory, it can be charged in several ways. The most directly applicable are solicitation under Article 82, obstruction of justice under Article 131b, and the false official statement framework of Article 107. These provisions overlap, and a single course of conduct can implicate more than one of them. The government chooses the theory that best fits what the member did, intended, and accomplished.

Solicitation under Article 82

Article 82 criminalizes soliciting or advising another person to commit an offense under the UCMJ. The essence of solicitation is the request itself. A member who encourages, advises, requests, or entices another to commit a UCMJ offense can be guilty of solicitation. Because a false official statement is itself an offense, asking another person to make one can constitute soliciting that offense.

A defining feature of solicitation is that the offense is complete when the solicitation is made. The person solicited does not have to go through with it. If a member asks a witness to lie to investigators, the solicitation has occurred whether or not the witness ever speaks to the investigators or actually lies. The maximum punishment for solicitation is tied to the offense solicited, so the seriousness of soliciting a lie depends on the nature of the underlying false-statement offense.

False official statement under Article 107

Article 107 punishes making a false official statement with intent to deceive. Its elements require that the accused made or signed a statement, that the statement was official, that it was false in whole or in part, that the accused knew it was false, and that the accused acted with intent to deceive. A false statement to a military investigator during an official inquiry is a classic example of an official statement under this article.

Article 107 can reach the member who solicits the lie, not only the person who tells it. Under principles of accomplice and accessorial liability, a person who aids, encourages, counsels, or procures another to commit an offense can be liable for that offense as a principal. A member who directs or encourages someone else to make a false official statement can therefore face Article 107 exposure for inducing the false statement, even though another person actually spoke the words to the investigator.

Obstruction of justice under Article 131b

Article 131b addresses obstruction of justice. It punishes conduct, in a matter in which the accused had reason to believe there were or would be criminal or disciplinary proceedings, undertaken with the intent to influence, impede, or otherwise obstruct the due administration of justice. The article expressly contemplates wrongfully influencing a witness and using misrepresentation, intimidation, or other improper means to interfere with the communication of information about a violation to those authorized to investigate it.

Asking someone to lie to a military investigator fits squarely within this concept. The act of trying to get a witness to provide false information to investigators is an attempt to influence a witness and to corrupt the flow of truthful information to the investigation, which is the core of obstruction. Article 131b carries significant penalties, with a maximum that can include a dishonorable discharge, total forfeitures, and a multi-year term of confinement.

What the government must prove

Across these theories, several common threads run through what the government must establish. The member must have intended that the other person lie or that the investigation be misled, rather than having made an innocent or ambiguous request. There must be a connection to an official matter, meaning an investigation or proceeding that exists or is anticipated, so that the false statement would be official and the obstruction would touch the administration of justice. And the falsity must be knowing, in the sense that the member sought to have the other person convey information the member understood to be untrue.

These requirements also define the defenses. A member may contest the existence of a request to lie, argue that any statement sought was true or merely a permissible account of events, dispute that the member intended to deceive or obstruct, or challenge the official nature of the matter. The presence of intent to deceive or to obstruct is frequently the central battleground.

Why the request alone is enough

The most important takeaway is that the law does not wait for the lie to be told. Solicitation is complete upon the request. Obstruction focuses on the attempt to influence the witness, not on whether the influence succeeded. Accessorial liability for a false official statement focuses on the encouragement or procurement of the offense. In each instance, the member’s own act of urging another to mislead investigators is the conduct the law condemns. A witness who refuses to go along, or who reports the request instead, does not erase the member’s exposure and in fact may become the evidence that proves it.

The bottom line

A member can be prosecuted for soliciting someone to lie to a military investigator. The conduct can be charged as solicitation under Article 82, as obstruction of justice under Article 131b, and as a false official statement under Article 107 through accessorial liability, and a single episode may implicate more than one of these articles. Because solicitation and obstruction focus on the member’s own request and intent, the offense can be complete even if the person asked never lies. Attempting to manufacture a false account during an investigation is a serious offense in its own right, often more dangerous to a member than the matter that prompted the investigation in the first place.

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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.

For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.

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