Solicitation under the Uniform Code of Military Justice is the offense of urging, advising, or otherwise trying to induce another person to commit a UCMJ offense. The question here adds a wrinkle that sounds like a contradiction but is not: can the offense be charged when the person solicited is a civilian who is nevertheless subject to the UCMJ? To answer it, two separate ideas have to be pulled apart, because the identity of the person solicited and that person’s UCMJ status are doing different jobs in the analysis.
What the solicitation article requires
Solicitation is codified at Article 82, 10 U.S.C. 882. The 2019 reorganization of the punitive articles expanded its reach. Today Article 82 has two parts. Subsection (a) is the general provision: any person subject to the UCMJ who solicits or advises another to commit any UCMJ offense, other than the offenses listed in subsection (b), may be punished as a court-martial directs. Subsection (b) is the serious-offense provision, reaching solicitation or advice to desert under Article 85, to commit mutiny or sedition under Article 94, or to commit misbehavior before the enemy under Article 99, with enhanced punishment if the solicited offense is attempted or committed. Anyone analyzing these cases must use the current structure, because the pre-2019 version of Article 82 covered only the four serious offenses and did not contain a general solicitation provision.
The elements track that structure. The government must prove that the accused solicited or advised another person to commit a UCMJ offense and that the accused did so with the intent that the offense be committed. The offense is generally complete at the moment of communication; the solicited person need not agree, attempt, or carry out the crime for the general solicitation offense to be made out, although whether the solicited offense was attempted or committed affects punishment under the subsection (b) framework.
Who must be solicited: the role of the listener
The statute says the accused must solicit “another” to commit an offense under the chapter. That phrasing matters. The offense solicited has to be a UCMJ offense, which means the conduct urged has to be conduct that the UCMJ punishes. That is where the listener’s status becomes relevant. UCMJ offenses are crimes committed by persons subject to the UCMJ. If the accused urges someone to commit conduct that would be a UCMJ offense, the listener has to be someone capable of committing a UCMJ offense for the solicitation to line up cleanly with a chargeable crime.
This is exactly why a civilian who is subject to the UCMJ fits. The phrase “civilian subject to the UCMJ” is not a contradiction. Article 2, 10 U.S.C. 802, defines who is subject to the code, and that definition reaches beyond uniformed members. It includes, for example, persons serving with or accompanying an armed force in the field in time of declared war or a contingency operation, along with other categories Congress has specified. A contractor, translator, or other civilian employee who falls within Article 2 in a qualifying setting is a person subject to the UCMJ and can commit UCMJ offenses. Soliciting that person to commit such an offense therefore fits the article, because the accused has urged “another” to commit conduct the UCMJ punishes.
Why the civilian’s status is the linchpin
Compare two scenarios. If a service member urges an ordinary civilian, one who is in no way subject to the UCMJ, to commit an act, the analysis gets complicated, because that civilian generally cannot commit a UCMJ offense at all. The conduct urged may not map onto a chargeable UCMJ crime, and the government may have to look to a different theory, such as Article 134 if the conduct is service-discrediting or prejudicial to good order and discipline, rather than to a clean Article 82 solicitation of a UCMJ offense. But if the civilian is subject to the UCMJ under Article 2, that civilian can commit UCMJ offenses, and soliciting that person to do so sits squarely within Article 82. The civilian’s UCMJ status is what makes the solicited conduct a UCMJ offense and the solicitation chargeable.
Jurisdiction over the accused is a separate question
It is worth keeping two jurisdictional questions distinct. The first is whether the conduct solicited is a UCMJ offense, which the civilian listener’s Article 2 status answers. The second is whether the court-martial has jurisdiction over the accused, the person doing the soliciting. Those are not the same. The accused must independently be a person subject to the UCMJ for a court-martial to try the solicitation charge. For a uniformed service member, that is rarely in dispute. For a civilian accused, the government would have to establish Article 2 jurisdiction over the accused as well. The question posed assumes the listener is the civilian subject to the UCMJ, and that assumption supplies the listener side of the equation, but a prosecutor still has to confirm jurisdiction over the solicitor.
Practical and proof considerations
In practice, the government must prove the accused’s intent that the solicited offense actually be committed, not merely loose talk, idle bravado, or angry venting. The communication has to amount to a genuine inducement. It must also identify the specific UCMJ offense solicited and show that the solicited conduct would in fact be an offense for the listener, which is precisely where the listener’s UCMJ status is litigated. Defense counsel often attack on these points: that the words were not a true solicitation, that the requisite intent was absent, or that the person solicited was not in a status that made the urged conduct a UCMJ offense at all.
The bottom line
Yes, solicitation can be charged when the solicitation was made to a civilian who is subject to the UCMJ. Under the current Article 82, soliciting “another” to commit a UCMJ offense is chargeable, and a civilian who falls within Article 2, such as a person accompanying the force in the field during a contingency operation, is a person who can commit UCMJ offenses. Because the listener’s UCMJ status is what makes the solicited conduct a chargeable offense, soliciting that civilian fits the article. The government still has to prove the accused’s intent that the offense be committed, identify the specific UCMJ offense solicited, and establish jurisdiction over the accused as a separate matter.
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.