Solicitation in the military justice system is the offense of advising, encouraging, or requesting another person to commit an offense. A natural question is whether solicitation can attach to conduct that sits at the intersection of two different bodies of rules: the administrative ethics standards that govern federal and military personnel, and the criminal prohibitions of the Uniform Code of Military Justice. In other words, if a service member urges someone to do something that would both breach the ethics rules and amount to a crime, can that urging itself be charged as solicitation. The answer requires separating two distinct solicitation theories under military law, because they reach very different conduct.
Two Distinct Solicitation Theories
Military law contains a specific solicitation statute, Article 82, which is divided into two subsections that operate differently. The difference is central to this question.
Article 82 has a broad reach and an enhanced subset. Subsection (a) criminalizes soliciting or advising another person to commit any offense under the Code, other than the offenses singled out in subsection (b). Subsection (b) addresses the gravest offenses, soliciting or advising desertion, mutiny, misbehavior before the enemy, or sedition, and carries enhanced punishment. To convict under Article 82, the government must prove that the accused solicited or advised another to commit an offense and did so with the intent that the offense be committed. Under subsection (b), if the solicited offense is actually attempted or committed, the solicitor can be punished as if guilty of the underlying offense. What Article 82 does not reach is a request to violate an ethics rule that has no criminal counterpart, because the thing solicited must itself be an offense under the Code.
This structure means solicitation can attach to a wide range of military offenses. Under subsection (a), a service member who urges another to commit a chargeable military offense can be prosecuted for the solicitation even though the conduct solicited is not one of the four gravest offenses singled out in subsection (b). The general article remains available in some circumstances, but Article 82(a) itself supplies the principal basis for charging solicitation of offenses such as wrongful appropriation or dereliction.
The Key Requirement: The Solicited Act Must Be a Criminal Offense
Whether solicitation applies to conduct that also violates ethics rules turns on whether the conduct solicited is itself a punishable offense, not merely an administrative infraction. Solicitation is derivative; it borrows its substance from the offense being urged. If the act a person is being encouraged to commit is a crime under the UCMJ, then encouraging it can be solicitation. If the act is only a violation of an administrative ethics standard with no criminal counterpart, there is no underlying offense to solicit in the criminal sense, and the solicitation theory has nothing to attach to.
This is why the dual nature of the conduct matters so much. Many ethics violations have a criminal mirror. Using one’s public office for private gain, prohibited by the standards of conduct, can also constitute wrongful appropriation or larceny of government property under Article 121, dereliction or failure to obey a lawful general regulation under Article 92, or conduct unbecoming for an officer. When the same act both breaches the ethics rules and satisfies the elements of a criminal article, soliciting that act can be charged as solicitation of the criminal offense. The ethics violation does not defeat the solicitation theory; the overlapping criminal violation is precisely what supplies the offense being solicited.
How This Plays Out in Practice
Consider a supervisor who pressures a subordinate to charge personal purchases to a government account, to falsify a record, or to misuse government property for the supervisor’s benefit. Each of those requested acts can violate ethics standards and also constitute a UCMJ offense. The act of pressuring or advising the subordinate to do it can be charged as solicitation of that offense under Article 82(a), since the solicited act is a chargeable offense even though it is not one of subsection (b)’s four enumerated crimes. The government would have to prove that the accused actually solicited or advised the act and intended that it be committed.
By contrast, if a service member merely encourages another to do something that is, at most, a technical ethics lapse with no criminal analog, the solicitation theory is weak or unavailable, because there is no underlying offense. The proper response in that situation is administrative, not criminal.
Defense Considerations
Several points are important for anyone facing a solicitation allegation arising from ethics related conduct. First, counsel will test whether the solicited act truly meets the elements of a criminal offense or is only an administrative violation dressed up as a crime. If the underlying conduct is not chargeable, the solicitation count should fail. Second, intent is essential. Solicitation requires that the accused actually intended the other person to commit the offense; offhand remarks, venting, hypothetical talk, or ambiguous statements may not show the required intent to bring about the act. Third, counsel will examine whether the words alleged actually amount to advising, encouraging, or requesting the offense, as opposed to lawful supervision, a poorly phrased instruction, or a discussion of options. Fourth, where the enhanced provisions of Article 82(b) are charged, counsel will confirm that the solicited offense is genuinely one of the four covered crimes, since a misapplied subsection (b) charge is vulnerable to challenge even if subsection (a) might otherwise apply.
Conclusion
Solicitation can apply to conduct that violates both ethics rules and criminal law, but only because, and to the extent that, the solicited conduct amounts to a criminal offense. Article 82 reaches solicitation of any offense under the Code, with desertion, mutiny, misbehavior before the enemy, and sedition singled out for enhanced punishment, so ethics related solicitations can be charged under subsection (a) as solicitation of an offense such as wrongful appropriation, dereliction, or conduct unbecoming. The ethics dimension does not block the charge; the overlapping criminal dimension is what makes solicitation possible. Because these cases hinge on whether a real underlying offense exists and on proof of intent, a service member accused of soliciting conduct that touches both ethics and criminal law should seek experienced military defense counsel to test every link in the government’s theory.
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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