UCMJ Article 115 Communicating Threats vs Article 134 Communicating Threats: Understanding the Overlap
On this page: 6 sections
An overlap between Article 115 and an Article 134 threat offense no longer exists in the current Manual for Courts-Martial. Since January 1, 2019, communicating a threat has been Article 115, and the Manual’s list of Article 134 offenses contains no communicating-threat offense. Before that date, Article 115 was the malingering article; malingering is now Article 83.
Article 134 also cannot be stretched to cover the same ground. The Manual’s preemption doctrine “prohibits application of Article 134 to conduct covered by Articles 80 through 132” (MCM, Part IV, ¶ 91.c(5)(a)).
Article 115: three offenses
(a) … Any person subject to this chapter who wrongfully communicates a threat to injure the person, property, or reputation of another shall be punished as a court-martial may direct.
Source: 10 U.S.C. § 915(a) (Article 115).
Subsection (b) covers wrongfully communicating a threat to injure a person or property by use of an explosive, a weapon of mass destruction, a biological or chemical agent, substance, or weapon, or a hazardous material. Subsection (c) covers maliciously communicating a false threat of that kind, one “known to be false by the person communicating the threat” (§ 915(b)-(c)).
The elements of the general offense are that the accused communicated language expressing a present determination or intent to injure the person, property, or reputation of another, presently or in the future; that the communication was made known to that person or a third person; and that it was wrongful (MCM, Part IV, ¶ 53.b(1)). Article 115 has no terminal element: the government does not have to prove that the threat was prejudicial to good order and discipline or service discrediting.
What makes a statement a threat
The Manual sets two tests (¶ 53.c(1)-(2)):
- How it reads. The communication “must be one that a reasonable person would understand as expressing a present determination or intent to wrongfully injure” the person, property, or reputation of another. Proof that the accused actually intended to carry out the harm “is not required.”
- What the speaker knew or meant. Wrongfulness “relates to the accused’s subjective intent.” It is satisfied “if the accused transmitted the communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.”
The Manual adds that a statement “made under circumstances that reveal it to be in jest or for an innocent or legitimate purpose that contradicts the expressed intent to commit the act is not wrongful,” and that the offense is not committed “by the mere statement of intent to commit an unlawful act not involving a threat.”
So a speaker’s claim of not meaning it is not automatically a defense, because the government need not prove intent to carry out the harm. The question is whether the speaker sent the message to threaten or knew it would be taken as a threat.
What Article 134 still does
Article 134 has three clauses: disorders and neglects prejudicial to good order and discipline, service-discrediting conduct, and “crimes and offenses not capital,” which reaches certain federal crimes (10 U.S.C. § 934). Preemption bars using the first two clauses for conduct Articles 80 through 132 already cover. For federal crimes charged under the third clause, the Manual’s Discussion says preemption generally does not apply, but does when Congress intended a similar UCMJ article “to cover a class of offenses in a complete way” (¶ 91.c(5)(a), Discussion). Whether a particular federal threat statute can be charged that way is a question for counsel.
Stalking, which can involve repeated threats, is a separate offense under Article 130.
How the facts sort
| 115(a) Threats generally | 115(b) Threat to use explosive or similar | 115(c) False threat | |
|---|---|---|---|
| Harm threatened | Injury to person, property, or reputation | Injury to person or property by explosive, WMD, biological or chemical agent, or hazardous material | Same means as 115(b) |
| Mental state | Purpose of threatening, or knowledge it will be viewed as a threat | Wrongful, under the same subjective test | Malicious; the accused knew it was false |
| Real intent to act | Not required | Not required | The threat is known to be false |
| Maximum | 3 years | 10 years | 10 years |
For example, a service member who texts a coworker “I’m going to slash your tires tonight,” intending to frighten the coworker, communicates a threat under Article 115(a) whether or not the service member ever planned to do it. Exchanged between friends in an obvious joke about a football game, the same words can fall outside the offense, because circumstances that reveal jest make a statement not wrongful. A phoned-in bomb warning that the caller knows is false falls under Article 115(c). Whether circumstances showed jest, and what the speaker knew about how the words would be received, are shown by the words, the setting, and the relationship between the people involved.
Maximum punishments
| Offense | Maximum (MCM, Part IV, ¶ 53.d) |
|---|---|
| Threats and false threats generally | Dishonorable discharge, forfeiture of all pay and allowances, 3 years |
| Threats and false threats concerning explosives, weapons of mass destruction, biological or chemical agents, or hazardous materials | Dishonorable discharge, forfeiture of all pay and allowances, 10 years |
Where every finding of guilty is for an offense committed after December 27, 2023, the military judge sets the sentence in a general or special court-martial, other than in a capital case (10 U.S.C. § 853(b)(1)).
Sources
- 10 U.S.C. § 915, communicating threats (Article 115)
- 10 U.S.C. § 934, general article (Article 134)
- 10 U.S.C. § 883, malingering (Article 83)
- 10 U.S.C. § 930, stalking (Article 130)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 53 and ¶ 91.
This is general legal information on Article 115 and the reach of Article 134; it does not evaluate any message or statement. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.