This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
Military prosecutors do not need a completed crime to secure a conviction. Under Article 80 of the Uniform Code of Military Justice (UCMJ), the act of trying, and failing, to commit an offense carries nearly the same weight as succeeding. That single provision transforms how criminal liability works across the entire military justice system, because it applies to every punitive article in the code.
10 U.S.C. § 880 defines the offense in plain terms: “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.” The statute does not require the crime to come close to completion. It does not require harm. It requires intent paired with action, and the threshold for what qualifies as action is lower than most service members assume.
What the Elements Require
The Manual for Courts-Martial (MCM), 2024 edition, Part IV, Paragraph 4 sets out three elements that the prosecution must prove beyond a reasonable doubt:
- That the accused did a certain overt act.
- That the act was done with the specific intent to commit a certain offense under the UCMJ.
- That the act amounted to more than mere preparation and tending, even though failing, to effect its commission.
Each element carries weight that is worth examining independently.
The overt act does not need to be illegal on its own. A service member who purchases materials, travels to a location, or contacts another person may have committed acts that are entirely lawful in isolation. The act becomes legally significant when it is coupled with specific intent and crosses the preparation threshold. Under United States v. Johnson, 22 C.M.R. 278 (C.M.A. 1957), a service member was convicted of attempted desertion based on acts that occurred entirely within the limits of a legitimate pass. The acts themselves were unremarkable. The intent behind them was not.
Specific intent
is the element that separates Article 80 from reckless or negligent conduct. The accused must have acted with the conscious purpose of bringing about a particular criminal result. General criminal intent, the kind of awareness that accompanies many UCMJ offenses, does not satisfy Article 80’s requirements. If a service member acts recklessly and nearly causes harm without intending that outcome, Article 80 does not apply.
This distinction matters in practice. Attempted murder, for example, requires proof that the accused specifically intended to kill, even if the underlying murder charge might be sustained under a lower mens rea standard in some circumstances. As the Court of Military Appeals noted in United States v. Roa, 12 M.J. 210 (C.M.A. 1982), there can be no “attempt” to commit involuntary manslaughter by culpable negligence, because negligence and specific intent are fundamentally incompatible.
The Preparation Line
The most contested question in Article 80 cases is where preparation ends and attempt begins.
The MCM’s explanation clarifies that mere preparation, planning, gathering materials, arranging means, or taking preliminary steps, is not enough. The accused’s conduct must cross into what courts describe as a “substantial step” toward commission of the offense. Under United States v. Byrd, 24 M.J. 286 (C.M.A. 1987), the test asks whether the overt act constitutes “a direct movement towards the commission of the crime … strongly corroborative of the accused’s criminal intent and indicative of resolve to commit the offense.”
Courts evaluate this question through several lenses. Proximity to completion matters: how close did the accused come to finishing the crime? The unequivocal nature of the act matters: could the conduct be explained by an innocent purpose, or does it point unmistakably toward criminal intent? And the degree to which external circumstances, rather than the accused’s own choice, prevented completion matters.
A service member who writes a plan to steal classified documents is preparing. A service member who obtains unauthorized access to the secure area where those documents are stored, with tools to extract them, has likely crossed the line. The exact boundary shifts with each set of facts, which is why the preparation-versus-attempt distinction generates so much litigation.
Factual Impossibility and Abandonment
Article 80 explicitly provides that, under current military law, factual impossibility is not a defense. If a service member believes their actions will result in a crime but unknown circumstances make completion impossible, they may still be convicted of attempt.
The classic illustration: a service member points what they believe is a loaded weapon at another person, pulls the trigger intending to kill, and the weapon malfunctions or is unloaded. The crime was factually impossible to complete. The conviction is still available, because the intent was present and the overt act crossed beyond preparation.
This is distinct from legal impossibility, which arises when what the accused intended to do is not actually a crime under the UCMJ. Legal impossibility may provide a defense, though it rarely arises in practice because Article 80 requires intent to commit an actual UCMJ offense.
Voluntary abandonment presents a different question. If a service member begins moving toward commission of an offense and then, based solely on a genuine change of heart, not external pressure, completely renounces the criminal purpose, this may serve as an affirmative defense. The abandonment must be voluntary, complete, and motivated by an actual change in intent rather than fear of detection, difficulty in completing the crime, or postponement to a more convenient time.
How Punishment Works
The maximum punishment framework under Article 80 mirrors the completed offense, with two statutory caps that apply in every case.
First, the death penalty may not be adjudged for any attempt offense, even if the underlying completed offense is punishable by death. Second, confinement may not exceed 20 years for any attempt offense, with one exception: attempted murder, which carries the full confinement authority of the completed murder charge.
For attempts of certain sexual assault offenses under Articles 120(a), 120(b), 120b(a), and 120b(b), mandatory minimum sentencing provisions that apply to the completed offenses also apply to the attempts. Outside those specific categories, mandatory minimum punishments do not carry over to attempt charges (MCM 2024, Part IV, Paragraph 4.d).
In practical terms, this means a service member convicted of attempted larceny faces the same maximum punishment as a service member convicted of completed larceny under Article 121, up to and including dishonorable discharge, forfeiture of all pay and allowances, and confinement scaled to the value and type of property involved. The ceiling is the same. What actually happens at sentencing depends on the circumstances: how close the accused came to completion, the seriousness of the intended offense, aggravating and mitigating factors, and the accused’s service record.
Article 80 also interacts with jurisdiction. An attempt to commit any UCMJ offense is triable by any court-martial that would have jurisdiction over the completed offense itself. For offenses designated as “covered offenses” under the Office of Special Trial Counsel (OSTC). established by the FY2022 National Defense Authorization Act (Pub. L. 117-81) and operational since December 27, 2023. an attempt to commit a covered offense under Article 80 is itself a covered offense, giving the OSTC exclusive prosecution authority (10 U.S.C. § 801(17)(D)).
Statute of Limitations
The statute of limitations for an Article 80 offense follows the statute of limitations of the target offense. Under Article 43 of the UCMJ (10 U.S.C. § 843), the general rule for most offenses is five years from the date the offense was committed.
Exceptions apply to the target offense, and therefore to the attempt. There is no statute of limitations for offenses punishable by death, which includes murder under Article 118. An attempted murder charge, while not itself punishable by death, targets an offense that is. Sexual offenses under Articles 120, 120b, and 120c also carry no statute of limitations, meaning attempted sexual assault falls outside the five-year window as well. Child abuse offenses carry extended limitations periods, potentially up to the life of the child or ten years from the date of the offense, whichever is longer.
The statute of limitations may also be tolled, paused, during any period in which the accused is absent without authority or fleeing from justice (Article 43(c)).
Where Article 80 Connects
Article 80 does not function in isolation. It is the mechanism through which incomplete versions of nearly every substantive UCMJ offense become prosecutable, and it intersects with several other foundational articles.
Article 77 (Principals) determines who may be held liable for an attempted offense. A service member who aids, abets, counsels, commands, or procures another person’s attempt may be prosecuted as a principal, held to the same liability as the person who performed the overt act. Article 81 (Conspiracy) can run alongside an attempt charge when two or more service members agree to commit an offense and one of them commits an overt act in furtherance of that agreement. A single course of conduct can generate charges under Article 80, Article 81, and the substantive offense itself.
Article 79 (Conviction of Lesser Included Offenses) adds another dimension. Under 10 U.S.C. § 879(c), and reflected in MCM 2024, an attempt is generally a lesser included offense of the completed crime. This means a service member charged with a completed offense may be convicted of the attempt if the evidence proves all elements of the attempt but falls short of the completed crime. Conversely, under Article 80(c), a service member charged with attempt may be convicted even if the evidence shows the offense was actually consummated.
That last point deserves emphasis. Article 80(c) states that “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.” Prosecution is not limited by the charge’s framing. If the evidence at trial reveals a completed offense, the attempt conviction still stands.
For any service member facing an allegation involving Article 80, the elements may appear straightforward on paper, an overt act, specific intent, conduct beyond preparation. In practice, every one of those elements involves fact-specific analysis, contested boundaries, and legal distinctions that shape whether a charge results in conviction, acquittal, or a lesser included finding. Understanding what Article 80 requires, and where its boundaries lie, is the starting point for understanding how attempt liability works throughout the military justice system.
Joseph L. Jordan, Attorney at Law: Article 80 makes attempting any UCMJ offense punishable even when the crime is never completed. The prosecution must prove specific intent and an overt act beyond mere preparation. Maximum punishment is generally the same as the completed offense, except that the death penalty cannot be imposed for an attempt alone.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.