UCMJ ARTICLE 82: SOLICITATION

Executive Summary

Key Takeaway: UCMJ Article 82 criminalizes solicitation when a service member advises, encourages, or requests another person to commit one of four specific military offenses: desertion, mutiny, misbehavior before the enemy, or sedition. The offense is complete upon communication of the solicitation regardless of whether the solicited person agrees, attempts, or commits the underlying crime. Maximum punishment for solicitation mirrors the maximum authorized for the solicited offense, meaning solicitation carries the same severe penalties as if the crime had been completed.

What Article 82 Covers: Advising another person to desert their post or unit, encouraging mutiny or collective insubordination against lawful authority, requesting another service member to engage in misbehavior before the enemy including cowardice or unauthorized surrender, soliciting sedition or acts intended to undermine military authority, and any communication directed at a specific person with intent that one of these four offenses be committed.

Critical Article 82 Elements:

Solicitation must target one of four specific offenses only (desertion under Article 85, mutiny under Article 94, misbehavior before the enemy under Article 99, or sedition under Article 94)
The accused must have solicited a specific person or persons (general complaints or statements to no particular audience do not satisfy this element)
Intent that the offense actually be committed is required (mere discussion, hypothetical conversations, or statements without criminal purpose are insufficient)
The solicitation must occur under circumstances reasonably tending to induce commission of the offense (context and manner of communication are evaluated)
No agreement, attempt, or commission of the solicited offense is required (the offense is complete upon communication with requisite intent)

Why Article 82 Cases Present Unique Challenges: The offense criminalizes words and communications alone without requiring any agreement or action by the solicited party, maximum punishment applies even if the solicited crime never occurs or is immediately rejected, context and intent must be proven through circumstantial evidence creating disputes about meaning and purpose, protected speech considerations may arise when statements involve political views or policy criticism, and solicitation of offenses outside the four enumerated crimes falls under Article 134 requiring careful charge analysis.

Immediate Steps if Under Investigation: Exercise your right to remain silent under Article 31(b) if questioned about statements you made to other service members regarding desertion, resistance to authority, or combat conduct, do not attempt to explain context or clarify your statements without defense counsel present as explanations often provide additional evidence of intent, preserve all communications including the full context of conversations that may demonstrate innocent purposes, do not discuss the investigation with the person you allegedly solicited or other potential witnesses, and consult with experienced military defense counsel immediately before providing any statement about your communications or intentions.

Understanding UCMJ Article 82

Article 82 of the Uniform Code of Military Justice addresses solicitation of specific serious offenses. This provision allows prosecution when a service member advises, counsels, urges, or otherwise attempts to persuade another person to commit one of four enumerated offenses: desertion, mutiny, misbehavior before the enemy, or sedition.

The policy behind Article 82 recognizes that encouraging others to commit offenses that fundamentally threaten military discipline and effectiveness warrants criminal punishment even when no agreement results and no crime is committed. The statute reflects the military's judgment that attempting to induce desertion, mutiny, combat misconduct, or sedition is as dangerous to good order and discipline as committing these offenses directly.

Article 82 cases frequently involve disputes about the meaning and intent behind communications. What one person characterizes as venting frustration, discussing options, or engaging in protected speech, prosecutors may interpret as criminal solicitation. The context of statements, the relationship between parties, and the circumstances surrounding communications become critical factors in determining whether criminal solicitation occurred.

Elements of Article 82

To obtain a conviction under Article 82, the prosecution must prove three elements beyond a reasonable doubt:

Element 1: The accused solicited another specific person to commit one of the four enumerated offenses

The government must establish that the accused communicated with a specific person or specific persons advising, counseling, urging, or attempting to persuade them to commit desertion, mutiny, misbehavior before the enemy, or sedition. General complaints, statements made to no particular audience, or expressions of opinion not directed at inducing specific persons to commit these offenses do not satisfy this element.

Forms of solicitation:

Direct verbal requests or commands
Written communications including letters, texts, or emails
Conduct clearly intended to influence specific persons
Messages delivered through intermediaries
Any communication reasonably calculated to induce the offense

The solicitation must be directed at identifiable persons. Broad statements, social media posts made to general audiences without targeting specific individuals, or overheard private thoughts typically do not constitute solicitation under Article 82.

Element 2: The solicitation was made with intent that the offense actually be committed

Specific intent is required. The accused must have communicated with the purpose of having the solicited offense actually occur. Hypothetical discussions, theoretical conversations, statements made in jest, or communications lacking serious intent to induce criminal conduct do not satisfy this element.

Proving intent:

Intent is typically established through circumstantial evidence:

The specific language used in the solicitation
Tone and manner of communication
Relationship between the accused and solicited party
Context and circumstances surrounding the communication
Whether the accused provided practical assistance or detailed plans
Repetition of the solicitation
The accused's conduct before and after the communication

Defenses to intent:

Statements were hypothetical or conditional
Communication was venting frustration without criminal purpose
The accused was engaged in protected political speech
Statements were sarcastic, hyperbolic, or clearly not serious
The accused intended to dissuade rather than encourage the offense

Intent must be proven beyond reasonable doubt. If evidence equally supports innocent and criminal interpretations of communications, the government has not met its burden.

Element 3: The solicitation was made under circumstances that reasonably tend to induce commission of the offense

The circumstances must be such that the communication would reasonably tend to persuade or induce another person to commit the offense. Courts evaluate whether, given the context, relationship, and manner of communication, the solicitation was likely to influence the other person toward committing the crime.

Factors considered:

The accused's position, rank, or authority relative to the solicited person
Whether practical assistance, resources, or detailed plans were offered
The urgency or pressure conveyed in the communication
Whether the solicitation was repeated or persistent
The vulnerability or receptiveness of the person solicited
Environmental factors such as deployment stress or unit tensions

Communications that reasonably tend to induce the offense need not actually succeed in persuading anyone. The test is whether, under the circumstances, the solicitation was calculated to influence another toward committing the crime.

The Four Enumerated Offenses

Article 82 applies only to solicitation of four specific offenses. Understanding these offenses is essential to defending against Article 82 charges:

Solicitation to Commit Desertion (Article 85)

Desertion involves abandoning military service with intent to remain away permanently, absence with intent to avoid hazardous duty or shirk important service, or quitting post or unit to avoid hazardous duty.

Examples of solicitation to desert:

"You should go AWOL and never come back"
"Just don't return from leave—they'll never find you"
Providing specific plans, routes, or resources for permanent absence
Encouraging absence to avoid deployment or combat duty

Maximum punishment: Same as desertion—up to 5 years confinement in peacetime (or more severe penalties in time of war), dishonorable discharge, total forfeitures

Solicitation to Commit Mutiny or Sedition (Article 94)

Mutiny involves creating violence or disturbance with intent to usurp or override lawful military authority, refusing in concert with others to obey orders, or conspiring to commit mutiny. Sedition involves acts with intent to cause insubordination, disloyalty, mutiny, or refusal of duty, or acts intended to interfere with military success.

Examples of solicitation to commit mutiny or sedition:

"We should all refuse this order together"
Encouraging collective disobedience or resistance to command
Urging others to organize against lawful military authority
Promoting acts intended to undermine military operations

Maximum punishment: Same as mutiny or sedition—up to 10 years confinement (death penalty possible in time of war), dishonorable discharge, total forfeitures

Solicitation to Commit Misbehavior Before the Enemy (Article 99)

Misbehavior before the enemy includes running away, shamefully abandoning position, endangering safety of command through disobedience or neglect, casting away arms or ammunition, cowardly conduct, quitting post, or misbehaving before the enemy in other ways.

Examples of solicitation to misbehave before enemy:

"Don't engage—just fall back"
Encouraging abandonment of defensive positions
Urging unauthorized surrender or cowardly conduct
Advising failure to execute combat missions

Maximum punishment: Same as misbehavior before enemy—up to life imprisonment, dishonorable discharge, total forfeitures

Solicitation to Commit Sedition (Article 94)

As noted above, sedition involves acts with intent to cause insubordination, disloyalty, mutiny, refusal of duty, or to interfere with military operations or success.

Maximum punishment: Same as sedition—severe penalties including lengthy confinement and punitive discharge

Solicitation of Other Offenses Under Article 134

Solicitation of crimes not enumerated in Article 82 falls under Article 134 as conduct prejudicial to good order and discipline or service discrediting. This includes solicitation to commit:

Drug offenses
Sexual offenses
Theft, fraud, or larceny
Assault or other violent crimes
Any other UCMJ offense not listed in Article 82

Important differences:

Article 134 solicitation typically carries lesser maximum punishment
Different elements and proof requirements may apply
Charging decisions may be challenged if wrong article is used

Understanding whether charges properly fall under Article 82 or Article 134 is critical. Improper charging may provide grounds for dismissal or amendment.

If you have been questioned about statements you made to other service members, contact Joseph L. Jordan at (888) 643-6254 immediately. Early legal consultation can prevent charges from being filed or significantly improve defense positioning.

Maximum Punishment Under Article 82

A unique and severe aspect of Article 82 is that solicitation carries the same maximum punishment as the solicited offense itself, regardless of whether that offense is attempted or committed. This makes solicitation one of the most harshly punished inchoate offenses in military law.

Punishment structure:

If the solicitation was to commit desertion, the accused faces the same maximum punishment as desertion itself, even if no one deserted or even considered deserting.

If the solicitation was to commit mutiny, the accused faces up to 10 years confinement and dishonorable discharge, even if the solicited person immediately rejected the idea.

If the solicitation was to commit misbehavior before the enemy, the accused faces potential life imprisonment, even if no combat misconduct occurred.

Additional consequences:

Punitive discharge (bad conduct or dishonorable)
Total forfeiture of all pay and allowances
Reduction to the lowest enlisted grade
Federal felony conviction record
Loss of veterans' benefits eligibility
Security clearance revocation
Barriers to civilian employment and professional licensing

Actual sentences depend on aggravating and mitigating factors, the seriousness of the solicited offense, circumstances of the communication, the accused's military record, and whether the solicited offense was actually attempted or committed (though this does not affect maximum punishment).

Defenses to Article 82 Charges

Defending solicitation charges requires challenging one or more elements the government must prove:

Lack of Specific Intent

If the accused did not intend for the solicited offense to actually be committed, conviction should not result. Defense may establish:

Statements were hypothetical or theoretical discussions
Communications were venting frustration without criminal purpose
The accused was engaged in protected political or policy discourse
Statements were clearly sarcastic, hyperbolic, or joking
The accused intended to dissuade or prevent the offense, not encourage it
Context negates any inference of criminal intent

Intent is proven through circumstantial evidence. Alternative innocent explanations supported by context, tone, and surrounding circumstances can create reasonable doubt.

No Specific Person Solicited

If the communication was not directed at a specific identifiable person or persons, the solicitation element fails. Defense may show:

Statements were general complaints to no particular audience
Communications were personal thoughts overheard by others
Social media posts addressed general topics without targeting individuals
The accused did not direct the communication at anyone specific

The requirement that solicitation target specific persons distinguishes criminal solicitation from protected speech expressing opinions or frustrations.

Ambiguity or Misinterpretation

If the communication is ambiguous or subject to multiple interpretations, defense may argue:

Language used was vague or unclear
Tone, inflection, or nonverbal cues change the meaning
Cultural or linguistic factors create misunderstanding
Context demonstrates innocent rather than criminal meaning
The solicited person did not understand the statement as encouragement to commit crime

Communications must be interpreted in context. Isolated phrases or statements taken out of context may appear more sinister than full conversations reveal.

Protected Speech

First Amendment protections apply in military contexts with limitations. Defense may argue:

Statements involved political discourse about policies or leadership
Communications addressed legitimate grievances through proper channels
The accused was exercising protected speech rights
Statements involved matters of public concern

Military members retain significant free speech rights, though these rights are balanced against military necessity and good order and discipline. Speech that does not constitute solicitation with criminal intent may be protected.

Entrapment

If government agents or informants induced the solicitation, entrapment may provide a defense:

A government agent originated the idea
The accused had no predisposition to commit the offense
Government used excessive persuasion or pressure
The accused would not have solicited absent government inducement

Entrapment requires proof that government conduct created the crime rather than merely providing an opportunity to commit an existing criminal intent.

Impossibility (Limited Application)

Legal impossibility (if what was solicited is not actually a crime) may provide a defense, but factual impossibility (circumstances making the offense impossible to complete) generally does not negate solicitation liability.

Withdrawal or Renunciation

Although solicitation is complete upon communication, voluntary and complete renunciation before any harm results may:

Mitigate punishment
Demonstrate lack of serious criminal intent
Prevent additional related charges

Requirements for effective renunciation:

Must occur before solicited offense is attempted
Must be complete and voluntary, not motivated by fear of detection
Should include affirmative steps to prevent the solicited crime
Communication of withdrawal to solicited person

Withdrawal does not erase completed solicitation but may affect sentencing and provide evidence regarding intent.

Your Rights During Solicitation Investigations

Service members under investigation for solicitation retain important constitutional and statutory protections:

Article 31(b) Rights

Before any questioning regarding suspected offenses, you must receive warnings:

You are suspected of an offense
The nature of the suspected offense
You have the right to remain silent
Any statement may be used against you in court-martial or other proceedings

These warnings apply to all official questioning about offenses, regardless of custody.

Right to Counsel

You have the right to consult with defense counsel before and during questioning:

Right to appointed military defense counsel at no cost
Right to retain civilian counsel at your own expense
Right to have counsel present during any questioning
Right to stop questioning at any time to consult with counsel

Protection Against Self-Incrimination

You cannot be compelled to provide incriminating statements. Silence cannot be used as evidence of guilt. This protection applies throughout investigation and prosecution.

Fourth Amendment Protections

You are protected against unreasonable searches and seizures. Investigators must have proper authorization to search your communications, electronic devices, or other property. Do not consent to searches without first consulting with defense counsel.

Special Considerations in Solicitation Investigations

Solicitation investigations present unique considerations:

Context reconstruction: Investigators attempt to reconstruct the context, tone, and circumstances of alleged solicitations. Written communications may lack tone and inflection. Witnesses may have different recollections of verbal statements.

Witness credibility: Cases often turn on testimony from the person allegedly solicited. Their credibility, motives for reporting, and relationship with the accused become critical factors.

Digital evidence: Text messages, emails, and social media communications provide permanent records but may lack full context. Investigators examine communication patterns, deleted messages, and metadata.

Command climate: Command response to alleged solicitation may be influenced by unit tensions, deployment status, or other factors affecting good order and discipline.

Corroboration: Some offenses (particularly sedition) may require corroborating evidence beyond the testimony of a single witness.

The Importance of Early Legal Consultation

Solicitation cases frequently turn on statements made during initial investigation. Attempts to explain context, clarify meaning, or minimize the seriousness of communications often provide additional evidence of intent and circumstances.

Consulting with experienced military defense counsel at the earliest indication of investigation provides critical benefits:

Protection of rights: Counsel ensures Article 31(b) rights are properly invoked and respected, preventing statements that could provide additional evidence of solicitation or intent.

Context preservation: Counsel can help document the full context of communications, including tone, relationship, and circumstances that may demonstrate innocent purposes.

Strategic positioning: Early counsel involvement allows presentation of context and intent before charging decisions are made, potentially preventing charges or encouraging resolution through lesser means.

Evidence analysis: Counsel evaluates whether charges properly fall under Article 82 or should be under Article 134, and whether communications constitute protected speech.

Witness strategy: Early investigation can reveal witness credibility issues, motives for reporting, or inconsistencies in accounts.

When You Should Contact Defense Counsel

Consult with military defense counsel immediately if:

You are questioned about statements you made to other service members
Investigators ask about conversations regarding desertion, disobedience, or resistance
You learn that someone reported your communications to command
You are asked about your opinions on orders, policies, or leadership
CID, NCIS, OSI, or CGIS contacts you regarding statements you made
Command indicates you are under investigation for solicitation
You made statements that could be misinterpreted as encouraging prohibited conduct

The earlier you consult counsel, the better positioned you are to protect your rights and build an effective defense.

Why Choose Joseph L. Jordan for Article 82 Defense

Joseph L. Jordan is a former Army Judge Advocate with extensive experience prosecuting and defending courts-martial. As a former military prosecutor, he understands how the government interprets communications as solicitation, establishes intent through circumstantial evidence, and responds to protected speech arguments.

Our defense approach includes:

Thorough communication analysis: We review all alleged solicitations in full context, examining tone, relationship, circumstances, and alternative innocent interpretations.

Intent challenge: We develop evidence demonstrating statements lacked criminal purpose, were hypothetical discussions, or involved protected speech.

Technical defense: We evaluate whether charges properly fall under Article 82 or Article 134, and challenge improper charging decisions.

Witness evaluation: We investigate credibility, motives, and reliability of witnesses claiming to have been solicited.

Constitutional arguments: We assert First Amendment protections where statements involve political discourse or matters of public concern.

We represent service members worldwide at every stage of solicitation investigation and prosecution.

Immediate Steps if You Are Under Investigation

If you are being investigated for possible solicitation violations:

Invoke your right to remain silent: Do not explain your statements, provide context, or attempt to clarify your communications without defense counsel present. State clearly: "I wish to exercise my right to remain silent under Article 31 and consult with defense counsel before answering questions."

Do not contact the person you allegedly solicited: Any communication may be used as evidence of obstruction, intimidation, or ongoing criminal conduct. Preserve existing communications but create no new ones.

Do not delete evidence: Destruction of communications creates separate criminal liability and adverse inferences. Preserve all text messages, emails, and other communications in their entirety.

Document context: Write down your recollection of the full context of any communications at issue, including what was said before and after, tone, circumstances, and your actual intent while memory is fresh.

Contact defense counsel immediately: Call (888) 643-6254 to speak with Joseph L. Jordan about your case. Early consultation protects your rights and strengthens your defense.

Frequently Asked Questions About UCMJ Article 82

What is solicitation under Article 82 of the UCMJ?

Article 82 criminalizes advising, encouraging, or requesting another person to commit one of four specific offenses: desertion, mutiny, misbehavior before the enemy, or sedition. The offense is complete when solicitation is made, regardless of whether the solicited crime occurs or anyone agrees to commit it.

Which offenses can be prosecuted under Article 82?

Article 82 applies only to solicitation of desertion (Article 85), mutiny (Article 94), misbehavior before the enemy (Article 99), and sedition (Article 94). Solicitation of other crimes is prosecuted under Article 134.

What elements must prosecutors prove for an Article 82 conviction?

Prosecutors must establish that the accused solicited another specific person to commit one of the four enumerated offenses, the accused did so with intent that the offense actually be committed, and the solicitation was made under circumstances reasonably tending to induce commission of the offense. The solicited person does not need to agree or attempt the crime.

How is Article 82 different from conspiracy or attempt?

Solicitation is complete upon communication with no agreement needed. Conspiracy requires agreement plus an overt act by any conspirator. Attempt requires a substantial step toward completing the crime. Solicitation criminalizes conduct at the earliest point and carries the same maximum punishment as the completed offense.

Does the solicited person need to act on the request?

No. The offense is complete when solicitation occurs. No agreement from the other person is required, the solicited crime need not be attempted, and the person solicited can reject or ignore the request. Maximum punishment remains the same whether the solicited offense occurs or not.

What constitutes "solicitation" under military law?

Solicitation includes direct requests or commands, advice or encouragement, written or verbal communication, conduct clearly intended to influence, and messages through intermediaries. The solicitation must be directed at a specific person or persons, not a general audience.

What are the maximum punishments under Article 82?

Punishment for solicitation equals the maximum for the solicited offense, regardless of whether that offense is attempted or completed. Desertion solicitation carries up to 5 years confinement (more in wartime). Mutiny/sedition solicitation carries up to 10 years (death possible in wartime). Misbehavior before enemy solicitation carries up to life imprisonment. All include possible dishonorable discharge, total forfeitures, and federal conviction.

What are the main defenses to solicitation charges?

Main defenses include lack of specific intent (statements were hypothetical or not seriously intended), no specific person solicited (general complaints without targeting individuals), protected speech (political discourse or legitimate grievances), ambiguity or misinterpretation (context negates criminal meaning), entrapment (government induced the solicitation), and withdrawal or renunciation (may mitigate punishment though offense is complete).

Can someone withdraw a solicitation?

Withdrawal must occur before any harm results, requires complete and voluntary renunciation, and should include affirmative steps to prevent the crime and communication of withdrawal to the solicited person. Withdrawal may mitigate punishment but does not erase completed solicitation as the offense is complete upon communication.

What role does context play in solicitation cases?

Context is critical in determining whether statements constitute criminal solicitation or protected speech. Courts examine the full circumstances including tone, relationship, manner of communication, and surrounding events. Statements taken out of context may appear criminal when full context demonstrates innocent purposes.

Can jokes or casual comments lead to Article 82 charges?

Risk factors include specificity of statements, repetition or pattern, audience reaction, command climate, and current military tensions. While jokes may be defended as lacking criminal intent, prosecutors may argue that specific, repeated, or detailed statements demonstrate serious intent regardless of characterization as jokes.

How do prosecutors prove solicitation cases?

Common evidence includes direct testimony from the solicited person, text messages or emails, recorded conversations, witness testimony about statements made, and circumstantial evidence of intent based on context and conduct. Prosecution advantages include that no agreement is needed, words alone create liability, and severe punishment creates leverage.

What should service members do if accused of solicitation?

Invoke Article 31 rights immediately, request military defense counsel, do not attempt to explain context without counsel, preserve all evidence, document your recollection privately, avoid contact with the solicited person or other witnesses, and consult experienced defense counsel before any statement.

How does Article 82 affect free speech rights?

Military members retain significant free speech rights balanced against military necessity and good order and discipline. Political discourse, policy criticism, and matters of public concern may receive protection. However, speech that constitutes solicitation with intent to induce serious offenses threatening military discipline is not protected.

Can someone face both Article 82 and other charges for the same conduct?

Charging decisions involve nature of solicited offense, prosecutorial discretion, maximum punishment desired, and strength of evidence. Multiplicity challenges may be available if same conduct results in multiple charges under different theories. Merger of offenses may be appropriate in some circumstances.

For immediate consultation regarding Article 82 charges or investigations, contact Joseph L. Jordan at (888) 643-6254. Experienced military defense representation for service members worldwide.

Important Notice: This information is provided for educational purposes and does not constitute legal advice. Every case involves unique facts requiring individualized legal analysis. Reading this information does not create an attorney-client relationship. For advice specific to your situation, consult with a qualified military defense attorney.