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.
Before 2019, Article 82 was one of the narrowest provisions in the UCMJ. It covered solicitation of exactly four offenses: desertion, mutiny, misbehavior before the enemy, and sedition. A service member who encouraged another to commit any other crime, assault, drug distribution, fraud, sexual offenses, could not be charged under Article 82. Prosecutors had to reach for Article 134, the general article, and argue that the solicitation was prejudicial to good order and discipline or service-discrediting.
The Military Justice Act of 2016 changed this. Effective January 1, 2019, Article 82 (10 U.S.C. § 882) now operates in two tiers. Subsection (a) criminalizes solicitation of any offense under the UCMJ. Subsection (b) retains enhanced punishment for solicitation of the original four, desertion under Article 85, mutiny or sedition under Article 94, and misbehavior before the enemy under Article 99. The expansion was substantial. What had been a four-offense provision became a statute that reaches every crime in the code.
What Does “Solicitation” Actually Require?
The elements under MCM 2024, Part IV, Paragraph 6.b are two:
First, the accused solicited or advised a certain person to commit a certain offense under the UCMJ. Second, the accused did so with the specific intent that the offense actually be committed.
That second element is the one that matters most in contested cases. Specific intent means the accused genuinely wanted the solicited offense to occur. Venting frustration, making a sarcastic remark, or speaking hypothetically does not satisfy this element, even if the words, taken literally, sound like encouragement. The prosecution must prove the accused communicated with the purpose of bringing about a criminal act.
But the threshold for the act itself is remarkably low. Solicitation is an instantaneous offense. It is complete the moment the communication reaches the other person. The solicited individual does not need to agree. Does not need to attempt the offense. Does not need to commit it. The crime exists in the asking, provided the intent was real.
This makes solicitation fundamentally different from conspiracy under Article 81. Conspiracy requires an agreement between two or more persons plus an overt act in furtherance of that agreement. Solicitation requires neither. One person speaks. That is enough. If the solicited person agrees and an overt act follows, the conduct may support both a solicitation charge and a conspiracy charge, they do not merge, and both can be charged and punished separately.
Where the Line Between Speech and Crime Gets Tested
The breadth of post-reform Article 82 creates a boundary problem that the old version rarely faced. When solicitation covered only four offenses, the factual scenarios were limited. Now that it covers every UCMJ offense, the range of communications that could theoretically qualify as solicitation has expanded enormously. A text message, a conversation in the barracks, a social media post, a whispered suggestion, any of these can become the basis of a charge.
Context becomes the battlefield. The prosecution argues the words meant what they said. The defense argues they meant something else, frustration, humor, rhetoric, protected expression. The MCM’s explanation (Paragraph 6.c) notes that the solicitation must be “earnest” rather than in jest, and that the form of communication, whether spoken, written, or electronic, is immaterial. What matters is whether the accused seriously intended the offense to be committed.
The scope of Article 82 within military jurisdiction is broader than comparable civilian statutes. Under Parker v. Levy, 417 U.S. 733 (1974), the military’s interest in maintaining discipline permits restrictions on speech that would not apply in civilian settings. A statement that might carry no legal consequence outside a military installation can constitute criminal solicitation under Article 82 if it carries specific intent within a military context.
One distinction worth noting: solicitation does not require that the accused be present when the solicited offense would occur. A service member who sends a message from one installation encouraging someone at another installation to commit an offense has committed solicitation at the moment of transmission, regardless of geographic separation.
How Punishment Works Across the Two Tiers
The punishment framework mirrors Article 82’s two-tier structure.
For subsection (a). solicitation of any UCMJ offense other than the four specified in subsection (b). the punishment is “as a court-martial may direct.” Under the MCM 2024 sentencing framework for offenses committed after December 27, 2023, the offense category depends on the underlying solicited offense. The general cap for solicitation of non-specified offenses is the maximum punishment for the solicited offense or the applicable offense category limit, whichever is less.
Subsection (b) operates differently. If the solicited offense, desertion, mutiny, sedition, or misbehavior before the enemy, is actually attempted or committed, the solicitor faces the same punishment as the person who committed the offense. The solicitor’s punishment tracks the completed crime, not a lesser solicitation penalty. If the solicited offense is neither attempted nor committed, the punishment reverts to “as a court-martial may direct,” but the offense categories for these specific solicitations remain in the higher tiers (Category 3 under MCM 2024. confinement from 30 to 120 months).
The practical consequence: solicitation of the four specified offenses carries significantly harsher exposure than solicitation of other crimes, particularly when the solicited offense is actually carried out. A service member who solicits another to desert in wartime and succeeds faces the same punishment as the deserter.
One additional jurisdictional point. Under 10 U.S.C. § 801(17)(C), solicitation to commit an offense covered by the Office of Special Trial Counsel is itself an OSTC-covered offense. This means OSTC retains authority over solicitation charges when the underlying solicited offense falls within its jurisdiction, including sexual assault offenses, domestic violence offenses, and other crimes specified in the OSTC’s mandate.
From Four Offenses to Every Offense. What the Expansion Changed
The timeline of Article 82’s transformation is worth understanding because it marks one of the more significant shifts in military criminal law theory from the MJA 2016 reforms.
Pre-2019, solicitation of general offenses lived under Article 134. Prosecutors had to establish the terminal elements, that the conduct was prejudicial to good order and discipline or service-discrediting, in addition to proving the solicitation itself. This added a layer of proof and created inconsistency across jurisdictions in how aggressively general solicitation was charged.
Post-January 1, 2019, that extra layer disappeared. Solicitation of any UCMJ offense is now a standalone crime under Article 82(a). No terminal element required. No need to argue prejudice to good order or service-discrediting conduct. The prosecution proves two elements, communication and specific intent, and the offense is established.
This matters beyond charging theory. It affects plea negotiations, because Article 82 charges can now stack alongside attempt (Article 80), conspiracy (Article 81), and the substantive offense itself. A single course of conduct, where a service member encourages someone to commit an offense, agrees to participate, takes a step toward completion, and the offense is carried out, can generate four separate charges under four separate articles. Each carries its own maximum punishment. None merges automatically with the others.
The reform also brought Article 82 into the OSTC framework. Before 2019, solicitation charged under Article 134 was not automatically within OSTC jurisdiction. Under the current structure, Article 82 solicitation of an OSTC-covered offense routes directly to OSTC without the jurisdictional ambiguity that Article 134 charging created.
For anyone tracking the evolution of military justice from the MJA 2016 forward, Article 82’s expansion from a four-offense statute to a comprehensive solicitation provision represents one of the clearest examples of Congress broadening prosecutorial tools while consolidating charging authority under specific articles rather than the general article.
Joseph L. Jordan, Attorney at Law: Article 82 criminalizes soliciting or advising another person to commit any UCMJ offense. The MJA 2016 expanded it from four specific offenses to every crime in the code. Enhanced penalties apply when the solicited offense is desertion, mutiny, sedition, or misbehavior before the enemy.
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.