Solicitation is the offense of seriously asking, advising, or encouraging another person to commit a crime. In the military, the charging question becomes more intricate when the conduct the accused urged is something that violates both military law and civilian criminal law, for example encouraging another to commit a theft, an assault, or a drug offense. The way the charge is framed depends on what offense was solicited and under which authority that underlying offense is itself punishable. The governing provision is Article 82 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 882, as it now reads after recent amendments expanded its reach.
The modern scope of Article 82
For many years Article 82 reached only a short list of grave offenses. The current statute is broader. Article 82 now distinguishes between two categories. Subsection (a) addresses solicitation of other offenses under the UCMJ generally, and it makes the soliciting itself punishable regardless of whether the person solicited went on to commit or attempt the act. Subsection (b) addresses solicitation of the most serious enumerated offenses, desertion, mutiny, misbehavior before the enemy, and sedition, and for those offenses the punishment and proof structure differ depending on whether the solicited act was actually committed or attempted. In short, soliciting another to commit essentially any UCMJ offense can now be charged under Article 82, with the punishment tied to the offense that was solicited.
This matters for the dual-nature situation because the first question is whether the underlying act is itself an offense under the UCMJ. If it is, Article 82 supplies the charging vehicle for soliciting it.
When the solicited act is independently a UCMJ offense
Most acts that are civilian crimes are also chargeable under the UCMJ. A larceny is punishable under Article 121, an assault under Article 128, and so on. When the accused encourages another service member to commit such an act, the solicited offense already exists in the UCMJ, and the soliciting is charged under Article 82 by reference to that article. The fact that the same conduct would also be a crime in civilian court does not change the charge; the prosecution simply identifies the UCMJ offense that was solicited. The elements the government must prove are that the accused solicited or advised another to commit the named offense and that the accused did so with the intent that the offense be committed. For the four gravest offenses under subsection (b), whether the act was attempted or carried out affects the analysis and the maximum punishment, but for the broad run of offenses under subsection (a), the solicitation is complete and chargeable when the encouragement is made with the requisite intent, whether or not the other person ever acts.
When the solicited act is a civilian crime without a direct UCMJ analogue
Sometimes the encouraged conduct is defined primarily by civilian law and does not map cleanly onto an enumerated UCMJ article. Military law still reaches it through Article 134, the general article, which incorporates federal civilian criminal law in two relevant ways. Conduct can be charged under Article 134 when it is prejudicial to good order and discipline or service-discrediting, and it can also be charged through the clause that assimilates non-capital federal crimes, including, through the Assimilative Crimes Act mechanism, state offenses made applicable on federal installations. When the underlying solicited act is itself most naturally charged under Article 134, the soliciting can be addressed accordingly, and the charge sheet must specify the civilian or assimilated offense that supplies the underlying conduct.
The practical upshot is that a charge will name the specific underlying offense and its source. Where that offense lives in the UCMJ’s enumerated articles, Article 82 references it directly. Where the offense reaches the military only through Article 134’s incorporation of civilian law, the pleading reflects that path.
Why the dual nature does not create double jeopardy or duplicative charging problems by itself
A common concern is that an act being both a military and civilian crime invites piling on. Several principles constrain that. Solicitation is a distinct, inchoate offense that punishes the encouragement, separate from any completed crime; it is complete when the seriously intended request is made, so it does not merge automatically with a later completed offense. At the same time, the prosecution should not charge the same misconduct under multiple theories in a way that is unreasonably multiplicious, and a military judge can require the government to elect or can dismiss redundant specifications. The dual military-civilian character of the underlying act influences which authority the underlying offense is pleaded under, but it does not authorize stacking solicitation charges for a single act of encouragement.
Putting it together
When the act encouraged is both a military and civilian crime, the solicitation charge is built around the underlying offense and the authority that makes it punishable in the military. Under the current Article 82, soliciting another to commit a UCMJ offense is itself an offense: subsection (b) governs the four gravest enumerated crimes and ties liability to whether the act was committed or attempted, while subsection (a) reaches solicitation of other UCMJ offenses regardless of whether the solicited act ever occurs, with punishment keyed to the underlying offense. If the encouraged act corresponds to an enumerated UCMJ article, the solicitation is charged under Article 82 by reference to that article. If the act reaches the military only through Article 134’s incorporation of federal or assimilated civilian law, the pleading identifies that underlying offense. Throughout, the government must prove the accused seriously sought or advised the offense with intent that it be committed, and the underlying conduct’s overlap with civilian law shapes how the offense is pleaded rather than multiplying the solicitation charges.
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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