UCMJ Article 80 Attempts vs Article 82 Solicitation: Who Takes Action Matters
On this page: 5 sections
An attempt under Article 80 requires the accused’s own overt act, beyond mere preparation, toward committing an offense. A solicitation under Article 82 requires only a serious request or advice to someone else to commit an offense. The Manual for Courts-Martial keeps them apart in one sentence: “Soliciting another to commit an offense does not constitute an attempt” (MCM, Part IV, ¶ 4.c(5)).
“I only talked about it” is therefore no answer to a solicitation charge, and “I never finished” is no answer to an attempt charge.
Article 80
(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing to effect its commission, is an attempt to commit that offense.
(b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.
(c) Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.
Source: 10 U.S.C. § 880 (Article 80).
The elements are an overt act, specific intent to commit a certain offense, an act amounting to more than mere preparation, and an act that apparently tended to bring about the offense (¶ 4.b). The Manual’s explanation (¶ 4.c):
- Preparation versus perpetration. Preparation is “devising or arranging the means or measures necessary”; the overt act is “a direct movement toward the commission of the offense.” Buying matches to burn a haystack is preparation; applying a lit match is an attempt, even if nothing burns. The overt act need not be the last act before completion.
- Changing one’s mind after the act. An attempt is complete once the overt act is done with the required intent, and “Failure to complete the offense, whatever the cause, is not a defense.”
- Factual impossibility. It is no defense that circumstances unknown to the accused made success impossible. The Manual’s examples are pulling the trigger of a gun that, unknown to the shooter, will not fire, and reaching into an empty pocket to steal a wallet.
- Voluntary abandonment is a defense only if the person abandoned the crime completely, before completion, “solely because of the person’s own sense that it was wrong.” Abandonment because of fear of detection, waiting for a better opportunity, inability to finish, or unexpected resistance does not count.
- Attempts under other articles. Attempts to desert, mutiny or sedition, subordinate compelling surrender, espionage, aiding the enemy, death or injury of an unborn child, and assault are charged under their own articles (¶ 4.c(6)).
Article 82
(a) … Any person subject to this chapter who solicits or advises another to commit an offense under this chapter (other than an offense specified in subsection (b)) shall be punished as a court-martial may direct.
Source: 10 U.S.C. § 882(a) (Article 82). Subsection (b) addresses soliciting or advising desertion, mutiny or sedition, or misbehavior before the enemy.
The offense requires intent that the offense actually be committed, and it “is complete when a solicitation is made or advice is given”; the person asked need not agree or act. Solicitation can be by any act or conduct “which reasonably may be construed as a serious request or advice,” and can be carried out through other people (MCM, Part IV, ¶ 6.b-c).
How the facts sort
| Attempt (Article 80) | Solicitation (Article 82) | |
|---|---|---|
| Who acts | The accused, by an overt act toward the offense | Another person is asked or advised to act |
| When complete | When the overt act goes beyond preparation | When the request or advice is made |
| Depends on another person's response | No | No |
| Impossibility | Factual impossibility is no defense | Not addressed; the offense is complete on the request |
| Abandonment | A narrow defense, solely from the person's own sense of wrong | No abandonment rule in the Manual |
For example, a service member who asks a friend to set fire to a rival’s car has solicited arson, whether or not the friend agrees. Going to the parking lot with a gas can, pouring gasoline on the car, and being caught striking a lighter is different: that is an overt act beyond preparation, an attempt under Article 80. If the person asked was an undercover agent who never meant to act, the request is still a completed solicitation, because the other person’s agreement is not an element. The line between preparation and a direct movement toward the offense, and between idle talk and a serious request, is drawn on the specific facts.
Maximum punishments
- Attempt: the maximum authorized for the offense attempted, except that death may not be adjudged and confinement may not exceed 20 years, other than for attempted murder. Mandatory minimums do not apply, except for attempts of rape and sexual assault under Article 120(a) or (b) and of rape and sexual assault of a child under Article 120b(a) or (b) (MCM, Part IV, ¶ 4.d).
- Solicitation: for offenses other than those in Article 82(b) and espionage, a dishonorable discharge, forfeiture of all pay and allowances, and 10 years, or the maximum for the underlying offense, whichever is less. Solicitation of desertion, mutiny or sedition, or misbehavior before the enemy carries the punishment for the offense itself if it is committed or attempted, and otherwise 15 years or the underlying maximum, whichever is less. Solicitation of espionage carries any punishment other than death (¶ 6.d).
Where every finding of guilty is for an offense committed after December 27, 2023, the military judge determines 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. § 880, attempts (Article 80)
- 10 U.S.C. § 882, soliciting commission of offenses (Article 82)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 4 and ¶ 6.
General information on Articles 80 and 82; no plan, conversation, or charge is evaluated. 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.