Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Service members who make threats can face charges under either Article 115 or Article 134, and understanding why prosecutors choose one over the other can be confusing. Both articles punish communicating threats, but they evolved at different times and have slightly different structures. Article 115 is a specific enumerated offense addressing threats to injure certain persons or property. Article 134’s communicating threats provision historically served as a catch-all before Article 115 was enacted and still applies in certain circumstances. In practice, these articles significantly overlap, and the choice between them often depends on prosecutorial preference and the specific facts.
Historical Context: Why Two Articles Exist
Article 134 has existed since the UCMJ’s inception in 1950, providing catch-all authority to prosecute conduct not specifically covered elsewhere. Communicating threats was long prosecuted under Article 134 as conduct prejudicial to good order and discipline or service-discrediting.
Article 115 was added later to specifically enumerate communicating threats as a standalone offense. This gave prosecutors a cleaner charging option with clearly defined elements rather than relying on the general article.
The result is two provisions covering substantially similar conduct. Congress didn’t repeal Article 134’s applicability to threats when it enacted Article 115, leaving both available. Prosecutors can choose either depending on which better fits their case.
The Elements Compared
Article 115 Communicating Threats:
The accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future
The communication was made known to that person or to a third person
The communication was wrongful
Under all the circumstances, the conduct was prejudicial to good order and discipline or was of a nature to bring discredit upon the armed forces
Article 134 Communicating Threats (traditional formulation):
The accused communicated a threat to injure a person or property
The threat was wrongful
The conduct was prejudicial to good order and discipline or service-discrediting
The elements are substantially similar. Both require a threat, communication of that threat, wrongfulness, and the prejudicial/discrediting element that applies to all Article 134 offenses.
Practical Differences
While the elements largely overlap, some differences exist:
Specificity: Article 115 explicitly includes threats to reputation in addition to person and property. Article 134’s traditional formulation focused on threats to injure person or property, though courts have applied it broadly.
Structure: Article 115 as an enumerated offense has its elements spelled out in the Manual for Courts-Martial with specific definitions. Article 134 relies on the general article framework with additional specifications for the threat offense.
Prosecution preference: Some prosecutors prefer Article 115 because it’s a specific offense, while others use Article 134 when facts fit more naturally into that framework.
In practice, these differences rarely determine case outcomes. The conduct that violates one article almost always violates the other.
What Constitutes a Threat
Under both articles, a threat must:
Express intent to injure. The communication must indicate a present determination or intent to cause harm. Vague expressions of anger don’t necessarily constitute threats.
Be communicated. The threat must be made known to someone, either the intended victim or a third party. Unexpressed thoughts can’t be threats.
Be wrongful. Lawful statements that might cause fear (such as “I’ll report you if you violate regulations again”) aren’t wrongful threats.
Context matters enormously. The same words might be a threat in one context and hyperbole in another. “I’m going to kill you” said during a heated argument might be a threat; the same words said laughingly between friends playing a video game probably aren’t.
The Intent Question
Neither article requires intent to actually carry out the threat. The offense is communicating the threat, not acting on it. However:
The communication must express intent to injure (even if the speaker doesn’t actually intend to follow through)
Courts consider whether a reasonable person would interpret the communication as a threat
Obvious jokes, hyperbole, or expressions of frustration that no reasonable person would take as genuine threats may not constitute criminal conduct
This creates a distinction between genuine threats (criminal) and expressions of anger that, while inappropriate, don’t rise to criminal threats.
Typical Fact Patterns
Clear threat under either article:
A soldier, angry at his supervisor, sends a text message: “Watch your back in the parking lot. I’m going to hurt you bad.” The specific nature of the communication, the direct targeting of a particular person, and the unambiguous expression of intent to injure make this a criminal threat under Article 115 or Article 134.
An NCO tells a subordinate: “If you report me, I’ll burn down your house with your family inside.” This threat to property and persons clearly constitutes a criminal threat.
A service member posts on social media, identifying a specific colleague: “Someone should put a bullet in [name’s] head. Maybe I will.” The specific targeting and expression of intent make this a threat despite the somewhat conditional language.
Borderline situations:
During an argument, a soldier shouts: “I’m so angry I could kill you!” The words are threatening, but context suggests an expression of frustration rather than a genuine threat. Whether this is charged depends on the full circumstances, including what else was said, the parties’ relationship, and whether the recipient reasonably feared harm.
A service member writes in a private journal: “I want to hurt everyone in this unit.” No communication to anyone; not a threat under either article regardless of how alarming the sentiment.
Conditional threats:
“If you don’t stop sleeping with my wife, I’ll beat you to death.” Conditional threats are still threats. The condition doesn’t eliminate the wrongful expression of intent to harm.
Charging Decisions
Prosecutors consider several factors when choosing between Article 115 and Article 134:
Clarity of elements: Article 115’s specific enumeration may be easier to explain to a court-martial panel.
Habit and preference: Different judge advocates may have different charging preferences based on training and experience.
Aggravating factors: If additional misconduct accompanies the threat (assault, harassment, stalking), prosecutors might choose the article that best combines with other charges.
Jurisdictional considerations: Article 115 is available regardless of Article 134’s additional requirements, though in practice both usually apply.
In most cases, either article would successfully reach the same conduct. The choice is often a matter of prosecutorial style rather than legal necessity.
When Threats Escalate
Communicating threats often connects to other offenses:
Assault: A threat can constitute an assault (offer to do bodily harm) if the victim reasonably believes the threat will be carried out imminently.
Stalking: Repeated threats may combine with other conduct to constitute stalking under Article 120a.
Extortion: Threats combined with demands for money or property become extortion under Article 127.
Obstruction of justice: Threats intended to prevent reporting or testimony constitute obstruction.
When threats accompany or constitute other offenses, prosecutors charge the most appropriate combination. A single course of conduct might yield multiple charges if multiple offenses occurred.
Defenses
For both articles:
Not a threat: The communication, in context, was not an expression of intent to injure. It was a joke, hyperbole, protected speech, or otherwise not a genuine threat.
No communication: The alleged threat wasn’t actually communicated to anyone.
Not wrongful: The statement was a lawful expression (such as stating an intent to pursue lawful remedies).
First Amendment: Some speech is constitutionally protected even if offensive. However, true threats are not protected, and military members have reduced First Amendment protections compared to civilians.
The Reasonable Person Standard
Courts often apply a reasonable person standard: would a reasonable person, knowing the full context, interpret the communication as a genuine threat?
This standard protects against:
Oversensitive interpretations of innocent remarks
Out-of-context readings of hyperbole
Punishment for expressions of frustration that no one would actually fear
But it also ensures accountability when:
The communication would genuinely frighten a reasonable recipient
The words, tone, and circumstances together indicate genuine threat
The accused should have known their communication would be perceived as threatening
Impact on the Victim
Even when a threat isn’t carried out, victims suffer real harm:
Fear for personal safety
Anxiety and psychological distress
Disruption of work and personal life
Need for protective measures
The UCMJ recognizes this harm by punishing the threat itself, not just actual violence. Service members are entitled to serve without fear of violence from their colleagues.
Practical Guidance
To avoid threat charges:
Control your anger; don’t express frustration in ways that could be perceived as threatening
Never make statements about harming others, even jokingly in text messages that could be misread
If you’ve made a threatening statement in anger, immediately clarify and apologize; this doesn’t eliminate potential charges but may affect how the situation is handled
Report threats you receive; this both protects you and creates documentation if the situation escalates
If you’re accused:
Document the context of the alleged threat
Identify witnesses who heard the full conversation
Don’t make additional statements that could be characterized as threats
Consult with defense counsel before making any statements about the incident
Frequently Asked Questions
If I made a threat but didn’t mean it and would never actually hurt anyone, can I still be charged?
Yes. The offense is communicating the threat, not carrying it out or even intending to carry it out. If you communicated words that a reasonable person would interpret as a threat to injure someone, you can be charged regardless of your internal intention. “I didn’t mean it” is not a defense to communicating a threat; it might be relevant to sentencing or might affect command decisions about how to handle the case, but the offense is complete when the threatening communication occurs. The practical lesson is to control your words even when angry. Once you’ve made a threatening statement, you’ve potentially committed an offense that can’t be undone by later claiming you didn’t mean it.
What’s the difference between a threat and just expressing anger?
Context is critical. Expressing anger (“I’m so frustrated with you”) differs from threatening harm (“I’m going to hurt you”). The line is sometimes clear and sometimes murky. Courts consider: the specific words used, the tone and manner of delivery, the relationship between the parties, the circumstances surrounding the statement, and whether a reasonable person would interpret the communication as a genuine expression of intent to harm. Some expressions of anger, even those using violent language, aren’t threats because no reasonable person would take them seriously as expressing actual intent. But many angry statements do cross the line into criminal threats. When in doubt, avoid language that references harming others in any way.
Can a threat made over text message or social media be prosecuted?
Absolutely. Written threats through text messages, social media, email, or any other medium are just as prosecutable as verbal threats. In fact, written threats often create clearer evidence because the exact words are documented, whereas verbal threats may involve disputes about what was said. Social media threats can be particularly serious because they may be seen by many people, may be directed at public figures or groups, and create permanent records. Screenshots, message histories, and social media archives all become evidence. Service members should remember that everything they write can potentially be used against them. Angry texts and social media posts have led to many successful prosecutions.