A frequent question in military criminal cases is whether a service member can be convicted of attempting a crime when, in reality, completing that crime was never actually possible. Perhaps the locker the accused tried to break into was empty, the substance he tried to buy was fake, or the target of a planned offense did not exist. Under the Uniform Code of Military Justice, the answer is generally yes. Attempt charges can stand even when the accused never had the means to complete the offense, because the law of attempt focuses on intent and conduct rather than on whether success was achievable.
What Article 80 Requires
Attempts are governed by Article 80 of the UCMJ, codified at 10 U.S.C. 880. The statute defines an attempt as an act, done with specific intent to commit an offense under the code, amounting to more than mere preparation and tending, even though failing, to effect its commission. Three core elements emerge from that definition.
First, there must be a specific intent to commit a particular offense. The accused must actually have the purpose of bringing about the completed crime. Second, there must be an overt act, meaning the accused must do something concrete, at an identifiable time and place, rather than merely think or plan. Third, that act must amount to more than mere preparation. It must be a direct movement toward commission of the offense, a substantial step that strongly corroborates the criminal intent.
Notably, the statute itself contains the phrase “even though failing.” That language signals that failure to complete the crime is not a bar to liability. Attempt law exists precisely to reach conduct that fell short of completion.
Why Lack of Means Usually Does Not Defeat the Charge
The reason an attempt can stand despite the impossibility of success lies in the doctrine commonly described as factual impossibility. Factual impossibility refers to a situation in which the accused intended to commit the crime and took substantial steps toward it, but some fact unknown to him made completion impossible. Under Article 80, factual impossibility is not a defense.
The classic illustrations make the point. A service member who reaches into a locker or pocket intending to steal, but finds it empty, has still attempted larceny. A person who tries to purchase controlled substances from someone who turns out to be an undercover agent, or whose product turns out to be a harmless substitute, has still attempted the drug offense. In each case the accused had the criminal intent and took a substantial step, and the only reason the crime was not completed was a circumstance beyond his knowledge or control. The law treats that person as dangerous and culpable based on what he intended and did, not on the lucky accident that completion was impossible.
Lack of “means” usually fits this same pattern. If the accused believed he had what he needed to commit the offense and acted on that belief, the fact that his means were inadequate or that completion was never realistically achievable does not erase the intent or the overt act.
The Real Battleground: Preparation Versus a Substantial Step
Because impossibility is generally not a defense, the more productive line of defense in these cases is usually the requirement that the conduct go beyond mere preparation. Article 80 does not punish intent alone, and it does not punish remote or preliminary steps. There is a meaningful line between getting ready to commit a crime and actually attempting it.
If the accused’s conduct amounted to planning, discussing, or acquiring tools without taking a direct step toward commission, the defense can argue that the government has proven only preparation, which is not enough. The substantial-step requirement asks whether the conduct strongly corroborated the criminal purpose and represented a real movement toward carrying it out. This inquiry is fact-intensive, and it is where many genuine disputes occur. The question is not “could the accused have succeeded,” but “did the accused cross from preparing into attempting.”
Intent Must Still Be Proven
Even though impossibility is not a defense, the government must still prove specific intent beyond a reasonable doubt. This is a second avenue of defense. If the evidence is consistent with an innocent explanation, a joke, an abandoned idea, or conduct that does not reveal a settled purpose to commit the specific offense, the attempt charge can fail for lack of intent. The combination of a genuine doubt about intent and a strong argument that any conduct was mere preparation is often the most realistic path to challenging an attempt charge.
Voluntary Abandonment
A related concept worth noting is voluntary abandonment. In some circumstances, a service member who genuinely and voluntarily abandons a criminal effort before completing the substantial step, for reasons reflecting a true change of heart rather than fear of getting caught or a mere postponement, may raise that abandonment. This is distinct from impossibility. It addresses the accused who could have proceeded but chose to stop, rather than the accused who was stopped by an external fact.
Practical Takeaways
For a service member facing an attempt charge, the impossibility of completing the crime is generally not going to be the winning argument, because Article 80 was written to reach exactly those situations. The stronger defenses focus on whether the prosecution can prove a true specific intent to commit the particular offense and whether the accused’s conduct genuinely crossed the line from preparation into a substantial step. Developing the facts about what the accused actually did, when, and why is therefore far more valuable than emphasizing that success was never possible.
Conclusion
Attempt charges under Article 80 can stand even when the accused never had the means to complete the offense. Factual impossibility is not a defense in the military justice system, because attempt law punishes the dangerous combination of criminal intent and a substantial step toward the crime, regardless of whether completion was achievable. The meaningful defenses lie elsewhere, in challenging whether the government can prove specific intent and whether the conduct truly went beyond mere preparation, as well as in the limited doctrine of voluntary abandonment.
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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