Article 77 of the Uniform Code of Military Justice (UCMJ) is the principals article. It does not create a separate crime. Instead, it makes clear that a person who aids, abets, counsels, commands, or procures the commission of an offense, or who causes an act to be done that would be an offense if done directly, is a principal and is just as guilty as the person who personally carries out the act. The hard question arises when the alleged principal, or one of the participants, is a civilian who is not subject to the UCMJ. Determining that person’s status requires separating two distinct ideas that are easy to confuse: whether someone is a principal as a matter of criminal participation, and whether a court-martial has jurisdiction over that person at all.
What Article 77 actually does
Article 77 defines who counts as a principal, not who can be tried. Under its terms, a principal includes both the perpetrator who directly commits the offense and the aider and abettor who shares in the criminal purpose and assists or encourages the commission of the crime. The classic elements of aiding and abetting are that the accused had the specific intent to facilitate the commission of the crime, had the requisite guilty knowledge, that an offense was in fact committed by someone, and that the accused assisted or participated in its commission. Importantly, a person can be convicted as a principal even if the actual perpetrator is never identified, is acquitted, or is someone over whom the court has no jurisdiction. The guilt of the aider and abettor does not depend on the conviction of the doer.
Jurisdiction is a separate question from participation
The principals concept and court-martial jurisdiction operate on different axes. A court-martial may try only persons who are subject to the UCMJ. Article 2 of the UCMJ defines that class, which centers on members of the armed forces and, in narrow circumstances, certain others such as persons serving with or accompanying an armed force in the field in time of declared war or a contingency operation, and certain retirees and reservists in specified statuses. A civilian who falls outside Article 2 is simply not amenable to court-martial, no matter how deeply involved in the underlying offense.
This means that calling a civilian a principal does not make that civilian triable by court-martial. The Supreme Court has long restricted military jurisdiction over civilians, and absent a qualifying status under Article 2, a civilian cannot be hauled before a court-martial under Article 77 or any other punitive article. Article 77 broadens who may be guilty of a substantive offense; it does not broaden who is subject to military law in the first place.
How the civilian’s status is actually determined in a military case
When a civilian is involved, two analyses run in parallel. First, for the service members who are subject to the UCMJ, the court determines each one’s status as principal or accomplice under Article 77 in the ordinary way, asking who perpetrated, who aided and abetted, and with what intent and knowledge. The civilian’s conduct remains relevant evidence in that determination, because the offense the service member is charged with aiding may have been carried out, in part, by the civilian. The civilian can be the perpetrator whose act the service member facilitated, or the person the service member procured to act, and the service member can be convicted as a principal on that basis even though the civilian cannot be tried alongside them.
Second, for the civilian, the military court does not adjudicate guilt at all, because it lacks personal jurisdiction. The civilian’s status as a principal, in the sense of criminal responsibility, is a matter for whatever forum does have jurisdiction over that person.
Where a civilian principal is actually prosecuted
A civilian who participated in conduct connected to the military is generally answerable in a civilian forum rather than a court-martial. Several avenues exist depending on the facts. Federal criminal statutes, prosecuted in the U.S. district courts, can reach a wide range of offenses, and the federal aiding-and-abetting statute mirrors the principal concept by making an aider or abettor punishable as a principal. For certain offenses committed overseas by civilians employed by or accompanying the armed forces, the Military Extraterritorial Jurisdiction Act (MEJA) extends federal criminal jurisdiction to civilian conduct that would be a felony if committed within the United States. State courts may have jurisdiction over offenses committed within their territory. In short, the absence of court-martial jurisdiction does not mean the civilian escapes accountability; it means accountability is sought in a court that has authority over civilians.
Practical consequences in a single incident
Consider an incident in which a service member and a civilian act together. The service member may be charged at court-martial as a principal under Article 77, whether as the direct perpetrator or as an aider and abettor of the civilian’s act, and the military judge or panel will decide that status using the aiding-and-abetting elements. The civilian, not being subject to the UCMJ, is not charged at the court-martial. The civilian’s potential liability as a principal is pursued, if at all, in federal court under the applicable federal statute or MEJA, or in state court. The two proceedings address the same events but answer different questions in different forums.
Bottom line
For a civilian who is not subject to the UCMJ, principal status under Article 77 is determined only as a matter of substantive criminal participation, and it has no effect on whether a court-martial can try that person. Article 77 expands criminal responsibility, not jurisdiction. A service member can be convicted as a principal even though the civilian co-actor cannot be court-martialed, and the civilian’s own status as a principal is decided in a civilian court, whether federal under general criminal statutes or MEJA, or state, that actually possesses jurisdiction over the civilian.
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.