Article 82 of the Uniform Code of Military Justice, codified at 10 U.S.C. 882, addresses solicitation, the act of advising or encouraging another service member to commit a military offense. A common question is whether telling another member to ignore or disobey a lawful order can fall within this article. The answer depends on what offense the advice is aimed at and how Article 82 is structured, because the article reaches some solicited offenses more broadly than others. Advising another to disobey lawful orders can indeed constitute a violation, but the precise charge and the proof required vary with the conduct urged.
How Article 82 is structured
Following the recodification that took effect in 2019, Article 82 was rewritten to broaden the offense of solicitation. Before that change, the article addressed only solicitation of certain serious offenses, namely desertion, mutiny, misbehavior before the enemy, and sedition. The revised article retains specific treatment for those gravest offenses and also extends solicitation liability more generally to advising or inducing another to commit other offenses under the code. The result is a layered statute. The most serious solicited offenses carry the heaviest exposure and their own framework, while solicitation of other offenses is punished according to the offense urged. Counsel must therefore identify exactly which offense the advice targets.
Advising disobedience as solicitation
Disobeying a lawful order is itself an offense under the code, addressed by the articles governing willful disobedience of superiors and failure to obey orders or regulations. When one member advises, counsels, or encourages another to ignore a lawful order, the adviser is urging the listener to commit that underlying offense. That is the essence of solicitation. The government must show that the accused solicited or advised another to commit a specific offense under the code, that the accused intended the offense to be committed, and that the conduct urged would in fact be an offense. Pressing a junior service member to disobey a lawful order is a recognized example of conduct that falls within the scope of solicitation, because it is an attempt to bring about a violation by another.
The requirement of a lawful order
A central limitation is that the order in question must be lawful. Solicitation liability is tied to urging an offense, and disobeying an order is an offense only if the order was lawful. Orders carry a presumption of lawfulness, but an order that is unlawful, such as one directing the commission of a crime or one beyond the authority of the issuer, cannot supply the predicate. Advising a fellow member not to comply with a patently unlawful order does not urge an offense, because compliance was not legally required in the first place. The analysis therefore begins with whether the order the listener was told to ignore was a lawful one.
Specific intent
Article 82 is a specific intent offense. It is not enough that the accused spoke words that could be read as discouraging compliance. The accused must have intended that the solicited offense actually be committed. Casual venting, abstract complaints about an order, or rhetorical grumbling do not satisfy this element if the speaker did not genuinely seek to induce disobedience. The government must prove that the communication was made with the purpose of having the listener disobey. This intent requirement separates genuine solicitation from ordinary expressions of frustration that are common in any workplace, including a military one.
The offense is complete on communication
A notable feature of solicitation is that it is complete once the solicitation is communicated, regardless of whether the person solicited agrees, attempts the offense, or carries it out. The adviser need not succeed. If a member, with the required intent, advises another to disobey a lawful order, the offense of solicitation is committed even if the listener refuses and obeys the order anyway. Whether the solicited offense is ultimately committed or attempted affects the available punishment under the article, but it does not determine whether solicitation occurred.
Punishment and its relationship to the solicited offense
The punishment for solicitation is linked to the offense urged. Under the framework that ties solicitation to the underlying offense, soliciting a serious offense exposes the accused to correspondingly serious consequences, while soliciting a lesser offense, such as disobedience of an order, carries exposure tied to that offense. This linkage reflects the policy that one who tries to induce a violation should face consequences commensurate with the gravity of the violation sought. Because Article 82 treats the gravest offenses differently from others, the classification of the solicited offense drives the sentencing analysis.
Distinguishing related theories
Advising disobedience can also implicate other theories of liability, and counsel should keep them distinct. A member who advises disobedience and whose advice is followed may also face liability as an aider or abettor of the resulting offense. Conduct urging broader defiance of authority may, in extreme cases, raise far more serious charges reserved for collective defiance. Article 82 solicitation, by contrast, focuses on the act of urging another to commit a defined offense, complete upon communication and turning on the speaker’s intent. Identifying the correct theory matters for both the elements and the exposure.
Conclusion
Advising another to ignore a lawful order can constitute a violation of Article 82 when the adviser, with the specific intent that the offense occur, urges another to commit the offense of disobedience. The order must be lawful, the intent to bring about disobedience must be genuine, and the offense is complete once the solicitation is communicated, whether or not the listener complies. Because the revised article treats the most serious solicited offenses differently and ties punishment to the offense urged, the practical analysis turns on identifying the precise offense the advice targets and proving the speaker meant for it to happen.
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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