Article 134 - Threat Communicating
If a service member threatens to injure another service member, his property
or reputation and communicates it to the person himself or to another
person, then he has committed an offense and he can be punished according
to the traditions of the military.
The offense is covered under Article 134. Communicating a threat is not
explicitly mentioned as an offense in Article 134, but indirect references
are made to such offenses. For instance, the text of statute in Article
134 says that all neglects and disorders which are adverse to the discipline
and good order in the armed forces, all conduct which can bring discredit
to the armed forces, all offenses and crimes not of a capital nature,
can be punished by convening a court martial. Communicating a threat is
one such offense covered under Article 134.
Elements of the offense
- The accused had communicated an intent or his present determination to
cause injury to another person, his property or reputation, in the present
- The accused made the communication known to the person or to another person.
- The accused made a wrongful communication.
- In these circumstances, the accused's conduct was against the discipline
and good order in the armed forces or the nature of the conduct brought
discredit to the armed forces.
Explanation for the elements
To establish that the accused has threatened a service member, it is not
necessary to show that the accused actually intended to carry out his
action (to injure). However, if the accused had made the declaration in
jest, in innocence or for a legitimate purpose, or if the declaration
contradicts the intent expressed by the accused, then it is not an offense.
No offense is committed if only a mere statement to commit an unlawful
act was communicated, which did not mention injury to the other person.
Maximum punishment for the offense
If the service member is held guilty of communicating a threat, then he
can be punished with a dishonorable discharge, forfeiture of allowances
and pay and 3 years of confinement.
Can communicating a threat an offense if the threat is based on an impossible variable?
A service member cannot be charged with the offense of communicating a
threat, if the execution of the threat was based on a impossible variable.
So what is an impossible variable?
Let us refer to the case of US Vs Shropshire. In that case, the accused,
who was handcuffed at the time, told his guard, 'if you remove this
handcuff, I will show you what I can do.' A contingent threat is considered
a threat only if there is a chance that the contingency could occur. The
contingency here is the removing of the handcuffs by the guard.
However, a reasonable guard would not have removed the handcuffs, so there
was no chance that the threat could have been fulfilled. Since the contingency
could not be fulfilled, the threat was negated and the accused cannot
be charged with communicating a threat. However, the accused can be charged
with using disrespecting language towards a guard or NCO.
The court noted that the accused would have committed the offense of communicating
a threat, if he had said, 'When these cuffs are taken off me, you
will see what I will do to you'. There was a reasonable chance that
this contingency could be fulfilled. Here is another case.
A service member of the U.S Air Force tells another service member, 'if
we were in the civilian world, I would have taken my gun and shot you
between your eyes.' The accused was in active duty and so he cannot
be taken as a civilian. So there is no reasonable chance of fulfilling
this statement. The service member has not communicated a threat. But
he can be charged with using provocative words.
Is it always wrong to communicate a threat?
It is possible that an accused has communicated a threat for a legitimate
purpose, for instance threatening a service member that he will be reported
to the media for maltreatment, or when the threat was made in self-defense.
In these cases, the accused will be allowed to use it as a special or