UCMJ Article 81 Conspiracy vs Article 82 Solicitation: Agreement Changes Everything
On this page: 5 sections
A solicitation under Article 82 is complete the moment the request or advice is made with intent that the offense be committed, whether or not anyone agrees. A conspiracy under Article 81 needs two things a solicitation does not: an agreement between two or more persons to commit an offense, and an overt act by at least one of them to carry it out.
The same conversation can therefore be a solicitation when the words are spoken, and become a conspiracy once the listener agrees and someone takes a step.
Solicitation: the request is the offense
(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) treats four offenses separately: soliciting or advising another to commit desertion (Article 85), mutiny or sedition (Article 94), or misbehavior before the enemy (Article 99).
The elements are that the accused solicited or advised a certain person to commit a certain offense under the UCMJ, with the intent that the offense actually be committed (MCM, Part IV, ¶ 6.b). The Manual calls it an “instantaneous offense”: it “is complete when a solicitation is made or advice is given with the specific wrongful intent to influence another or others to commit any offense under the UCMJ,” and the person solicited need not agree or act (¶ 6.c(1)).
Solicitation need not be spoken or written. “Any act or conduct which reasonably may be construed as a serious request or advice to commit any offense” can qualify, and the accused may act through other people (¶ 6.c(2)). Where the act of soliciting is itself an element of a different offense, such as pandering or obstructing justice, the Manual directs that the separate offense be charged instead (¶ 6.c(3)).
Conspiracy: agreement plus an overt act
(a) Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.
Source: 10 U.S.C. § 881(a) (Article 81).
Subsection (b) covers conspiracy to commit an offense under the law of war, where the accused knowingly does an overt act; if death results to a victim, the punishment may be death.
The elements are an agreement with one or more persons to commit an offense under the UCMJ, and an overt act by the accused or a co-conspirator, performed while the agreement existed and while the accused remained a party, for the purpose of bringing about its object (MCM, Part IV, ¶ 5.b(1)). The Manual explains both parts (¶ 5.c(2), (4)):
- The agreement needs no formal words. It is enough that “the minds of the parties arrive at a common understanding,” which may be shown by their conduct, and it need not state the means or each person’s role.
- The overt act must be independent of the agreement, occur at or after the time of the agreement, and be done by a conspirator to effect the object. It need not be criminal. “Any overt act is enough, no matter how preliminary or preparatory in nature,” as long as it shows the agreement is being carried out.
Two or more persons are required. The accused must be subject to the UCMJ, but the others need not be, and the accused need not know who all the co-conspirators are (¶ 5.c(1)). Some offenses already require two people acting together, and there is no conspiracy where the agreement is only between the people necessary to commit that offense; the Manual’s examples are dueling, bigamy, extramarital sexual conduct, and bribery (¶ 5.c(3)).
When a solicitation becomes a conspiracy
Imagine a service member who asks a roommate to help steal equipment from the unit supply room. The request, made with intent that the theft happen, is a completed solicitation even if the roommate says no. If the roommate agrees, there is an agreement but not yet a conspiracy offense. Once either of them takes a step toward the theft, such as copying a key, the overt act element is met, and each of them can be charged with conspiracy whether or not the theft ever occurs.
| Solicitation (Article 82) | Conspiracy (Article 81) | |
|---|---|---|
| Who must act culpably | Only the solicitor | Two or more persons who agree |
| Agreement | Not required | Required |
| Act beyond the words | Not required | An overt act by any conspirator |
| When complete | When the request or advice is made | When an overt act follows the agreement |
| Liability for the planned offense | Possible through Article 77 if the offense is committed; Article 77 covers anyone who "counsels, commands, or procures" an offense | Each conspirator is liable for all offenses committed under the conspiracy while it continues and the person remains a party (¶ 5.c(5)) |
| Withdrawal | The Manual sets no withdrawal rule; the offense is complete when made (¶ 6.c(1)) | Withdrawal before any overt act avoids the conspiracy, but only by affirmative conduct wholly inconsistent with the agreement that shows the party has severed all connection with it; after an overt act, the withdrawing party remains guilty of conspiracy and of offenses committed up to the withdrawal (¶ 5.c(6)) |
Conspiracy is a separate offense from its object: both the conspiracy and the completed offense may be charged, tried, and punished (¶ 5.c(8)). It is no defense that the chosen means could not actually succeed (¶ 5.c(7)).
The Manual’s requirement that two or more persons agree does not address an agreement in which the only other party is a government agent; how that situation is treated is a question of case law for counsel. Whether a particular conversation was a serious request, and whether an agreement was reached, must be shown by the evidence in the case.
Maximum punishments
| Offense | Maximum (MCM, Part IV, ¶ 5.d and ¶ 6.d) |
|---|---|
| Conspiracy to commit a UCMJ offense | The maximum for the object offense, but never death |
| Conspiracy to commit a law of war offense, death resulting | Death or such other punishment as a court-martial or military commission may direct |
| The same, no death resulting | Any punishment other than death |
| Solicitation of espionage | Any punishment other than death |
| Solicitation of desertion, mutiny or sedition, or misbehavior before the enemy, offense committed or attempted | The punishment provided for the offense itself |
| The same, offense not committed or attempted | Dishonorable discharge, forfeiture of all pay and allowances, and 15 years, or the maximum for the underlying offense, whichever is less |
| Solicitation of any other offense | Dishonorable discharge, forfeiture of all pay and allowances, and 10 years, or the maximum for the underlying offense, whichever is less |
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; capital cases follow the separate procedure in § 853(c) (10 U.S.C. § 853(b)(1)).
Sources
- 10 U.S.C. § 881, conspiracy (Article 81)
- 10 U.S.C. § 882, soliciting commission of offenses (Article 82)
- 10 U.S.C. § 877, principals (Article 77)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 5 and ¶ 6.
No real plan, conversation, or charge is evaluated; the text explains how Articles 81 and 82 are defined. 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.