Military Lawyers

Article 82 of the Uniform Code of Military Justice criminalizes solicitation. It is a short statute with a heavy reach, because it allows the government to punish a service member for words alone, even when the offense the words encouraged never takes place. Codified at 10 U.S.C. 882, the article was reworked when the Military Justice Act of 2016 took effect on January 1, 2019, broadening the list of offenses that can serve as the object of a solicitation. Understanding what the government must actually prove is the starting point for any defense.

The Two Core Elements

At its foundation, Article 82 requires the prosecution to establish two things beyond a reasonable doubt. First, that the accused solicited or advised a particular person or persons to commit a covered offense. Second, that the accused did so with the specific intent that the offense actually be committed. Both elements must be present. Loose talk, venting, or hypothetical musing does not satisfy the statute unless the trier of fact concludes the accused genuinely wanted the underlying crime carried out.

The first element focuses on conduct and communication. Solicitation can occur through any means that conveys the request, whether spoken, written, or expressed through gestures. The communication does not need to be received or even understood; the act of soliciting is complete when the accused makes the urging. The second element focuses on the mind of the accused. Because solicitation is a specific intent offense, an honest belief that one was joking, or proof that the accused never wanted anyone to act, undercuts the charge.

Which Offenses Can Be Solicited

The current version of Article 82 separates the covered offenses into two tiers, and the tier matters because it changes both the elements and the available punishment.

Subsection (a) reaches the broad category: soliciting or advising another to commit any offense punishable under the UCMJ other than the offenses listed in subsection (b). This means a service member can be charged under Article 82 for urging another to commit, for example, a larceny or an assault. Subsection (b) covers the most serious military offenses: desertion, mutiny, misbehavior before the enemy, and sedition. Soliciting any of these carries the gravest exposure, and the punishment is tied to the seriousness of the offense solicited. Defense counsel should always confirm which subsection the specification rests on, because the elements track the specific offense solicited.

The Effect

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Alcohol-related misconduct is one of the most common reasons service members find their careers in jeopardy, and a single incident is treated very differently from a pattern. When the misconduct repeats, the calculus inside the chain of command shifts in important ways. Repeated alcohol-related offenses can move a case from discretionary handling into mandatory separation processing, and they reshape who within the command actually holds the authority to keep a member in uniform. Understanding that shift helps a service member grasp both the danger and the avenues that remain open.

From discretionary discipline to mandatory processing

A first alcohol-related incident, such as an initial driving under the influence offense, is typically handled through the command’s ordinary disciplinary tools. The command may use nonjudicial punishment, may refer the matter to court-martial in a serious case, and may also initiate administrative separation, but at this stage the response is largely discretionary.

Repetition changes that. The services have rules that make the initiation of administrative separation mandatory once a pattern emerges. In the Army, for example, separation processing is mandatory for soldiers involved in two serious incidents of alcohol-related misconduct within a twelve-month period, and a second conviction for driving while intoxicated or under the influence during a career also triggers mandatory separation processing. The precise triggers vary by service, but the principle is consistent across the force: repeated alcohol-related misconduct removes much of the command’s discretion about whether to start the separation machinery. The command no longer chooses whether to act; it is required to begin the process.

Mandatory initiation is not the same as mandatory discharge

A crucial distinction often gets lost. The fact that separation processing must be initiated does not mean the member must be discharged. Mandatory initiation only means the case must enter the administrative separation system. The ultimate outcome, retention or separation, is decided through that system, and retention remains possible.

This is where command retention authority comes into focus. The separation authority retains the power to keep the soldier in service if it concludes that retention is warranted. So even after a pattern of alcohol misconduct forces the command to start the process, leadership can still decide that the member should be retained, and the structure of who holds that decision is altered by the repeated nature of the misconduct.

How repeated misconduct elevates the decision

When the case involves a member whom the command wants …

Article 82 of the Uniform Code of Military Justice (UCMJ) punishes soliciting or advising another person to commit an offense. Because solicitation is an offense of words, what the accused allegedly said is often the entire case, and prosecutors frequently rely on covert audio or video recordings to capture the solicitation as it happened. When a case rests on a secret recording, the way that recording was obtained comes under close examination. Military judges scrutinize covert recordings in Article 82 prosecutions through several distinct lenses: whether the recording was lawfully made and seized, whether it can be authenticated and is what it purports to be, and whether the surrounding conduct of investigators raises an entrapment defense. This article explains how each layer of scrutiny works in the solicitation context.

Why recordings are central to Article 82 cases

Under 10 U.S.C. 882, a person subject to the Code who solicits or advises another to commit an offense may be punished as a court-martial directs, with heightened consequences when the solicitation targets specific serious offenses such as desertion under Article 85, mutiny under Article 94, or misbehavior before the enemy under Article 99. The offense is complete when the solicitation is made; the solicited crime need not occur. As a result, the proof usually centers on the content of a conversation rather than on a physical act. Investigators and cooperating witnesses sometimes record those conversations covertly to preserve the exact words. When they do, the recording becomes the core exhibit, and the defense will probe how it was created and handled.

Lawfulness of the recording and its seizure

The first line of scrutiny is whether the recording was lawfully obtained. The Military Rules of Evidence (MRE) govern this. MRE 317 addresses the interception of wire and oral communications and ties military practice to the federal statutory framework for such interceptions, which can require specific authorization for certain categories of surveillance. A recording made without required authorization may be subject to challenge. The defense will ask whether the monitoring fell within a recognized lawful category, such as a recording made with the consent of one party to the conversation, or whether it required and lacked an authorizing order.

Consent is a recurring issue. Federal practice generally permits a recording where one participant to the conversation consents, which is the common pattern when a cooperating informant or undercover agent wears a recording device during …

The Article 32 preliminary hearing is the gateway to a general court-martial, and one of the most common questions an accused service member asks is whether they will be able to cross-examine the witnesses the government presents. The answer is yes, the accused has a right to cross-examine witnesses who testify at the hearing, but that right operates within a confined scope that was deliberately narrowed by reforms to the law. Knowing both the right and its limits is essential to using the hearing effectively.

What the Article 32 hearing is for

Article 32 of the Uniform Code of Military Justice, codified at 10 U.S.C. 832, requires a preliminary hearing before charges can be referred to a general court-martial. Following the 2014 statutory reforms, this hearing is not the broad discovery-style investigation it once was. Rule for Courts-Martial 405 confines the proceeding to a limited set of determinations: whether each specification states an offense, whether there is probable cause to believe the accused committed the charged offense, whether the convening authority has court-martial jurisdiction, and what disposition should be recommended. The hearing is presided over by a preliminary hearing officer, who is the neutral figure responsible for the determinations and the report.

This narrowing matters because it defines the universe within which cross-examination is permitted. The hearing is built around probable cause, a reasonable-belief standard far below proof beyond a reasonable doubt, and the examination of witnesses is tethered to that purpose.

The right to cross-examine

Within that framework, the accused does have the right to cross-examine witnesses who testify at the preliminary hearing. The accused may also present additional evidence relevant to the matters the hearing is meant to decide. So when the government calls a witness to testify, defense counsel may question that witness. This is a meaningful right, because cross-examination at the Article 32 stage can test the strength of the government’s showing, expose weaknesses in the case, and create a record that can be useful later.

It is important to understand the corollary, however. The right attaches to witnesses who actually testify at the hearing. The 2014 reforms changed the dynamic by making victim testimony at the preliminary hearing no longer compelled in the same way it once was, and by allowing the hearing to proceed on documentary and other evidence. A named victim, for example, cannot be required to testify at the preliminary hearing and …

The clearest way to answer this is to separate two ideas that the question blends together. Solicitation under Article 82 is a complete, freestanding offense the moment a serious request to commit a crime is made. Conspiracy under Article 81 is a different offense built on an agreement plus an overt act. An attempt to form a conspiracy, which is what attempted conspiracy means, is a more unusual theory that would combine the law of attempt with the law of conspiracy. The practical line between solicitation and a failed effort to reach a criminal agreement turns on what the accused did and whether anyone agreed.

Solicitation under Article 82

Article 82, UCMJ, punishes soliciting or advising another to commit an offense. The core of the offense is the communication itself. The government must prove that the accused, with the specific intent that an offense actually be committed, made a serious request, advice, or enticement to another person to commit a UCMJ offense. Two features define it.

First, solicitation is a specific-intent crime. The accused must genuinely intend that the person solicited carry out the underlying offense. A statement that is mere bluster, venting, or a passing remark does not qualify unless it reasonably can be construed as a serious request or advice to commit the crime, made with that intent.

Second, solicitation is complete upon communication. It does not matter whether the person solicited agrees, refuses, or does anything at all. The crime is finished the instant the serious request is communicated with the required intent. There is no need for an agreement, and there is no need for any further act by anyone. This is the single most important distinguishing feature.

Conspiracy under Article 81

Article 81, UCMJ, punishes conspiracy. It requires two distinct things beyond mere words. First, there must be an agreement between the accused and at least one other person to commit a UCMJ offense. A meeting of the minds is essential; one person cannot conspire alone. Second, while the agreement exists and the accused remains a party to it, the accused or a co-conspirator must perform an overt act to effect the object of the agreement. The overt act need not itself be criminal; it simply must be a step taken to advance the unlawful plan.

So conspiracy goes a measurable distance further than solicitation. Solicitation is a one-way communication; conspiracy is a two-way (or …

Yes, a military officer can sometimes retain a security clearance after failing to disclose a foreign contact on the SF-86, but doing so is harder than the underlying foreign contact issue would have been on its own. The reason is that nondisclosure shifts the analysis. A foreign relationship is usually evaluated as a question of potential foreign influence, which is frequently manageable. Once the contact is left off the form, the government’s concern becomes honesty and trustworthiness, which is a more serious problem. Whether retention is possible depends heavily on whether the omission was deliberate and on what the officer does after it surfaces.

Two Separate Adjudicative Concerns

Security clearance eligibility is governed by the national security adjudicative guidelines set out in Security Executive Agent Directive 4. Foreign contacts implicate Guideline B, foreign influence, which asks whether a relationship with a foreign national creates vulnerability to coercion, exploitation, or divided loyalty. Guideline B cases are rarely lost simply because a foreign contact exists. The nature, frequency, and depth of the relationship drive the analysis, and many contacts are mitigated.

Failing to report a contact raises a different guideline. Guideline E, personal conduct, addresses the deliberate omission, concealment, or falsification of relevant and material facts on forms like the SF-86 that are used to determine clearance eligibility. When an omission is treated as deliberate, the adjudicator is no longer just weighing foreign influence; the adjudicator is weighing whether the officer can be trusted to be candid with the government. That credibility concern is what makes nondisclosure dangerous to a clearance.

Why the Lie Is Often Worse Than the Contact

Adjudicators repeatedly find that concealing an issue is more damaging than the issue itself. Personal conduct is one of the most frequently cited bases for clearance problems, and a large share of those cases involve omission, concealment, or falsification on the SF-86. The logic is straightforward. The entire clearance system depends on self-reporting. A foreign acquaintance, even a close one, can be evaluated and managed. An applicant who hides material information has demonstrated a willingness to withhold the truth from the very process designed to assess them. That undermines the trust the clearance represents.

This is why self-adjudication is so risky. An officer who privately decides a foreign contact is not significant enough to list, and therefore leaves it off, has made the disclosure decision that belongs to the government. When investigators …

Guideline H of the national security adjudicative guidelines addresses drug involvement and substance misuse. The concern is straightforward: improper or illegal involvement with drugs raises questions about a person’s willingness or ability to comply with laws, rules, and regulations, including those that protect classified information. A Guideline H concern is not automatically fatal to a clearance. The guidelines, set out in Security Executive Agent Directive 4, expressly provide mitigating conditions, and the strength of a person’s mitigation case often determines whether eligibility is granted, retained, or revoked. Effective mitigation centers on showing that the conduct is in the past, that it will not recur, and that the person has taken concrete, verifiable steps to put it behind them.

Understanding the Underlying Concern

Guideline H reaches the illegal use of controlled substances, the misuse of prescription and over-the-counter drugs, and the use of substances that cause physical or mental impairment. The adjudicative worry is reliability and judgment. An adjudicator is asking whether the person can be trusted to follow rules and safeguard sensitive information. Mitigation works by directly answering that worry: demonstrating that the behavior does not reflect current judgment and does not create ongoing risk.

Time and Infrequency

One of the most powerful mitigating conditions is the passage of time combined with infrequency. The guidelines recognize mitigation where the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment. The strategy here is documentation. A person should be able to show the date of last use, the limited frequency of any use, and the context, so the adjudicator can see that the conduct is remote and isolated rather than a current pattern. The longer and cleaner the intervening period, the stronger this factor becomes.

Demonstrated Abstinence and a Changed Environment

A second core strategy is to establish a genuine break from drugs. The guidelines credit an individual who acknowledges drug involvement and provides evidence of actions taken to overcome the problem, including an established pattern of abstinence. What gives this weight is the surrounding conduct: disassociating from drug-using associates and contacts, and changing or avoiding the environment where drugs were used. Adjudicators look for real lifestyle change, not just a promise. Evidence such as a documented period of abstinence, a move away from the people and places …

Desertion under Article 85 of the Uniform Code of Military Justice is one of the most serious absence offenses a service member can face, and the element that separates it from ordinary unauthorized absence is a state of mind. A panel or a military judge must be convinced beyond a reasonable doubt not only that a service member left without authority, but that at some point during the absence the member intended to stay away from the unit, organization, or place of duty permanently. Because intent lives inside a person’s head, courts almost never have direct proof of it. Instead, they reconstruct it from conduct, timing, and circumstance. Understanding how that reconstruction works is the key to understanding both how the government builds a desertion case and how the defense dismantles one.

The element that distinguishes desertion from AWOL

Article 85 is codified at 10 U.S.C. 885. Unauthorized absence under Article 86 (10 U.S.C. 886) requires only that a member be absent from an appointed place of duty without permission. Desertion adds the mental element of intent to remain away permanently, or in a separate theory the intent to avoid hazardous duty or to shirk important service. The permanent-departure theory is the one that turns on the prosecution’s ability to show a settled purpose never to return.

This matters enormously at sentencing. A short unauthorized absence may be resolved through nonjudicial punishment or a minor court-martial, while a conviction for desertion can expose the accused to a dishonorable discharge and confinement, with the maximum punishment increasing in time of war. The entire weight of that exposure rests on the intent element, which is why it is so heavily litigated.

Intent is proved by circumstantial evidence

Service members rarely announce a plan to abandon the armed forces, so the law expressly permits the factfinder to infer intent from circumstantial evidence. The Manual for Courts-Martial recognizes that intent to remain away permanently may be drawn from the surrounding facts. No single fact is decisive, and the factfinder weighs the entire picture rather than checking boxes.

Among the circumstances that military courts have treated as supporting an inference of permanent intent are the length of the absence, an attempt to dispose of uniforms or other military property, the purchase of transportation to a distant location or arrest a long way from the duty station, the failure to surrender when surrender would have been …

Yes. A military judge has clear authority to sanction discovery violations, including violations by the prosecution, known in a court-martial as trial counsel. Discovery in the military justice system is unusually broad and largely governed by rule rather than left to the parties, and the same rule that defines those obligations also empowers the judge to enforce them. The harder questions are not whether the judge may act, but which remedy is appropriate and what the judge must find before imposing the most serious sanctions.

The source of the obligation and the power to enforce it

Discovery at courts-martial is principally governed by Rule for Courts-Martial (RCM) 701. The rule imposes broad disclosure duties on trial counsel, including the duty to disclose evidence the defense is entitled to inspect and the separate, constitutionally rooted duty to disclose information that tends to negate guilt, reduce the degree of guilt, or reduce punishment. That latter duty reflects the prosecution’s obligation to turn over favorable, material evidence recognized in constitutional due process law and carried into the military rules.

The same rule that creates these duties also gives the military judge tools to regulate discovery and to respond when a party fails to comply. The judge may order a party to permit discovery, may grant a continuance, may prohibit a party from introducing evidence not disclosed, and may enter such other order as is just. That last phrase is important, because it signals that the list of remedies is illustrative rather than exhaustive, and that the judge has discretion to tailor relief to the violation.

The menu of remedies

When trial counsel commits a discovery violation, the military judge can choose among several responses, generally moving from least to most intrusive.

The most common and often most effective remedy is a continuance combined with an order to produce the withheld material. If the defense receives the evidence and has enough time to investigate it, interview witnesses, and adjust its strategy, the continuance frequently cures the prejudice from a late disclosure. Military appellate decisions have repeatedly recognized that a continuance can be an adequate remedy for the government’s failure to disclose in time.

The judge can also order immediate disclosure, can limit the use of the late-disclosed evidence, can give the panel an instruction addressing the violation, and in serious cases can exclude evidence the government failed to disclose. In the most extreme situations …

No. A court-martial acquittal does not prevent administrative discharge proceedings based on the same underlying conduct. This is one of the harshest realities in military justice, because many service members understandably assume that being found not guilty ends the matter. It does not. The criminal case and the administrative separation case are separate systems with different purposes, different burdens of proof, and different consequences, and an acquittal in the first does not bar the second.

Why double jeopardy does not apply

The starting point is Article 44 of the Uniform Code of Military Justice, which provides former jeopardy protection. Once a court-martial reaches a final acquittal, the government cannot try the service member again for the same offense at another court-martial. That is genuine double jeopardy protection, and it is real.

The protection has a strict boundary, however. Double jeopardy applies to criminal prosecution. Administrative separation is not classified as criminal punishment. The military treats actions such as nonjudicial punishment, letters of reprimand, and administrative separation as administrative measures rather than criminal jeopardy. Because an administrative discharge board is not a second criminal trial, Article 44 and the constitutional double jeopardy guarantee simply do not reach it. The result is that the same conduct can be acquitted at court-martial and still serve as the basis for separation.

The difference in burden of proof

The most important practical reason an acquittal does not stop a separation board is the difference in the standard of proof. A court-martial must find guilt beyond a reasonable doubt, the highest standard in the law. An administrative separation board decides whether the alleged misconduct is supported by a preponderance of the evidence, meaning it is more likely than not.

This gap is decisive. A panel may acquit because the government failed to prove guilt to the demanding criminal standard, while a separation board can still conclude that the same facts are more likely true than not. An acquittal therefore tells the separation board only that the criminal standard was not met. It does not establish that the conduct did not occur, and the board is free to reach its own conclusion under the lower standard.

What an administrative discharge board can do

An administrative separation board does not impose criminal sentences. It determines whether a basis for separation exists, whether the member should be separated, and what characterization of service to recommend, such as honorable, general …