Charging a service member with an “attempt” to commit a crime under Article 80, UCMJ, has specific limitations. The core limitation is that the government must prove the accused did more than just think about or prepare to commit a crime; they must have taken a “substantial step” towards its commission. This substantial step must be an overt act that is strongly corroborative of the accused’s criminal intent. Mere preparation is not enough to constitute a criminal attempt.
The legal standard distinguishes between preparation and perpetration. For example, simply buying a ski mask and looking at a bank’s floor plan would likely be considered mere preparation for a robbery. However, driving to the bank with the ski mask and a weapon and starting to walk toward the entrance would be a “substantial step” and could be charged as an attempted robbery. The act must move beyond the point where a person could reasonably claim they had abandoned their criminal purpose.
A military defense attorney defending against an attempt charge will focus their argument on this distinction. They will argue that their client’s actions, while perhaps suspicious, did not cross the line from mere preparation into a true attempt. They will contend that their client had not yet taken a direct step toward committing the offense and could have still changed their mind. This defense requires a careful, fact-based analysis of how close the accused actually came to completing the intended crime.