Article 80 of the Uniform Code of Military Justice, codified at 10 U.S.C. 880, criminalizes attempts. An attempt is an act done with the specific intent to commit an offense under the code, amounting to more than mere preparation, and tending, even though failing, to effect the commission of that offense. When the offense the accused tried to commit is larceny, the charge becomes attempted larceny under Article 80. This article explains exactly what the government must prove for that conviction.
The four core elements of an Article 80 attempt
To convict a service member of an Article 80 attempt, the prosecution must prove four elements beyond a reasonable doubt. First, that the accused did a certain overt act. Second, that the act was done with the specific intent to commit a certain offense under the code. Third, that the act amounted to more than mere preparation. Fourth, that the act apparently tended to effect the commission of the intended offense. These four elements apply to any attempt charge, and attempted larceny is simply the application of them to the underlying offense of larceny.
Each element does real work. The overt act anchors the charge in conduct rather than thought. The specific intent element identifies which crime the accused was trying to commit. The more-than-mere-preparation requirement separates punishable attempts from early planning. The tending-to-effect requirement confirms that the act moved meaningfully toward completing the crime.
Specific intent to commit larceny
The intent element is the heart of an attempt charge, and it is demanding. Article 80 requires specific intent to commit the targeted offense. The accused must knowingly and purposely intend the criminal result. For attempted larceny, that means the government must prove the accused specifically intended to wrongfully take, obtain, or withhold property from another with the intent permanently or temporarily to deprive the owner of its use and benefit, which is the intent that defines larceny itself.
Negligence or recklessness is not enough. An attempt cannot rest on a careless or risk-taking state of mind. The accused must intentionally commit the acts that form the overt act and must commit them with the specific intent of accomplishing the larceny. This is why intent is so often the contested issue at trial. If the evidence shows only that the accused acted carelessly, or that the accused had some other purpose, the specific intent element fails.
The overt act and the substantial step
The overt act must be conduct that clearly manifests the accused’s intent and constitutes a substantial step toward completing the offense. Military law has adopted the substantial step test for distinguishing punishable attempts from conduct that is still merely preparatory. Whether a given act is only preparation or has crossed into a substantial step is decided on a case-by-case basis, looking at the specific facts.
In an attempted larceny case, the substantial step might be physically reaching for or moving the targeted property, manipulating a system to divert funds, or taking other concrete action aimed at the wrongful taking. Buying tools or scouting a location may remain preparation, while actually beginning the taking under circumstances showing intent generally crosses the line. The fact finder weighs the conduct in context to decide whether it amounted to more than mere preparation and apparently tended to effect the larceny.
Timing and jurisdiction
One feature of attempt law worth noting concerns timing. Military courts have explained that it is not necessary for every step leading up to or following the attempt to occur while the accused is subject to the UCMJ, so long as some element of the offense occurs during such times. The commission of a single qualifying act while on active duty or during inactive duty training can suffice, provided that act is done with the specific intent of committing the larceny, amounts to more than mere preparation, and tends to effect its commission. This matters for reservists and others whose status changes, but it does not lower the core proof requirements.
What this means in practice
For an attempted larceny conviction under Article 80, the government must connect all four elements. It must identify a concrete overt act, show that the act was a substantial step rather than mere preparation, prove that the accused acted with the specific intent to commit larceny, and show that the act apparently tended to bring about the larceny. A weakness in any one element can defeat the charge. Common defense themes include challenging specific intent, arguing the conduct never advanced beyond preparation, or contesting whether the act tended to effect the offense at all.
Because attempt cases turn so heavily on intent and on the line between preparation and a substantial step, the facts of each case matter enormously. A service member facing an Article 80 attempted larceny charge should consult a qualified military defense attorney. This article provides general information about the elements and is not legal advice for any particular case.
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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