When a service member takes steps toward breaking a lawful general order but does not complete the violation, prosecutors sometimes consider charging the conduct in more than one way. A frequent question is whether the same incomplete act can be charged under both Article 80, which covers attempts, and Article 92, which covers failure to obey an order. The answer turns on the relationship between these two articles and on military rules that discourage piling multiple charges onto a single act.
What each article covers
Article 92 of the Uniform Code of Military Justice punishes violation of or failure to obey a lawful general order or regulation, failure to obey other lawful orders, and dereliction of duty. A violation of a general order is a completed offense: the order existed, the accused had a duty to obey it, and the accused violated or failed to obey it.
Article 80 punishes attempts. An attempt requires a specific intent to commit a particular offense, an overt act that amounts to more than mere preparation, and a tendency, though failure, to bring about the intended offense. In other words, Article 80 reaches conduct that falls short of the completed crime but goes beyond planning.
The proper way to charge an incomplete violation
Military practice treats an incomplete or attempted violation of a general order as an Article 80 matter. When the conduct does not amount to a completed failure to obey, the appropriate charge is attempt under Article 80, with the underlying offense being the Article 92 violation the accused tried to commit. Notably, charging the attempt does not require proving that the accused intended to violate the order in a legalistic sense; it requires proof that the accused intended to engage in the prohibited conduct.
This framing matters because it shows that the two articles are not meant to be stacked for the same incomplete act. One describes the offense the member tried to commit (the Article 92 violation), and the other describes the inchoate form of that offense (the Article 80 attempt).
The lesser-included-offense relationship
Military law recognizes Article 80 attempt as a lesser included offense of an Article 92 violation. Under the elements test used in military courts, an offense is a lesser included offense when all of its elements are also elements of the greater offense. Because a completed failure to obey necessarily encompasses the attempt to do so, the attempt sits inside the completed offense rather than standing as a wholly separate crime arising from the same conduct.
This relationship is the core reason that charging both for one incomplete act is problematic. A greater offense and its lesser included offense generally cannot both support conviction and punishment for the same act, because doing so would punish a single wrong twice.
Multiplicity and unreasonable multiplication of charges
Two related doctrines limit double charging in the military system. The first is multiplicity, grounded in the constitutional protection against double jeopardy, which forbids cumulative punishment for a greater and a lesser included offense arising from the same act. The second is the unreasonable multiplication of charges, a uniquely military doctrine that allows courts to limit charges that, even if technically permissible, unfairly exaggerate a service member’s criminality by carving one transaction into several offenses.
Applied here, charging the same incomplete attempt to violate a general order under both Article 80 and Article 92 would ordinarily run into these protections. If the act was a completed violation, Article 92 fits and the attempt merges into it. If the act was only an attempt, Article 80 fits and there is no completed Article 92 violation to charge separately for that same act. Either way, both articles should not survive for the identical conduct.
When could both articles appear in one case?
There is a scenario where both articles legitimately appear: when distinct acts are involved. A service member might complete one violation of a general order, chargeable under Article 92, and separately attempt a different violation, chargeable under Article 80. In that situation each charge rests on its own conduct, and the multiplicity and multiplication doctrines are not offended because the charges are not aimed at the same act. The key is whether the charges target separate behavior or simply relabel one incomplete act twice.
Practical takeaways
A service member confronted with both an Article 80 and an Article 92 charge for what looks like a single incomplete act should scrutinize whether the charges describe the same conduct. If they do, defense counsel can move to dismiss one charge on multiplicity grounds or argue unreasonable multiplication of charges, and can press for merger at sentencing. Because the analysis depends on a precise comparison of the alleged acts and elements, experienced military defense counsel should evaluate the charge sheet closely.
Bottom line
An attempt to violate a general order is properly charged under Article 80, with the attempted Article 92 violation as the underlying offense. Because attempt is a lesser included offense of the completed violation, the same incomplete act should not be prosecuted under both articles. Multiplicity and the unreasonable multiplication of charges doctrines exist precisely to prevent that kind of duplicative charging, though both articles may legitimately appear in a single case when they rest on genuinely separate acts.
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.