Article 118(2) UCMJ Unpremeditated Murder

Note: This law applies only to Article 118(2) UCMJ Unpremeditated Murder offenses allegedly committed on or after 1 January 2019.

What is Article 118(2) UCMJ Unpremeditated Murder?

Article 118(2) of the Uniform Code of Military Justice (UCMJ) addresses the offense of unpremeditated murder within the United States Armed Forces. Unpremeditated murder, as outlined in this statute, refers to the unlawful killing of another human being without prior intention to kill, though still possessing an intent to inflict bodily harm sufficient to cause death.

This distinction is crucial: unlike premeditated murder, where there is a deliberate plan to kill, unpremeditated murder lacks this forethought. However, the act is performed in such a manner that death is a likely and foreseeable outcome, rendering the perpetrator criminally liable under military law.

The Legal Consequences of Article 118(2) UCMJ Unpremeditated Murder

Being charged with unpremeditated murder under Article 118(2) UCMJ can have severe consequences, including lengthy prison sentences, dishonorable discharge, and loss of military benefits. The gravity of this charge necessitates a nuanced understanding of military law and the unique factors at play within the armed forces.

Why You Need an Experienced Military Defense Lawyer

If you or a loved one faces accusations under Article 118(2) UCMJ, it is essential to have an experienced military defense lawyer. The stakes are incredibly high, and the complexities of military courts require a lawyer adept at navigating these unique legal landscapes.

At Gonzalez & Waddington, we provide robust defense strategies tailored to the specifics of your case. Our legal defense team is dedicated to protecting your rights throughout the trial process. We work diligently to scrutinize evidence, cross-examine witnesses, and challenge prosecutorial claims.

Facing a charge of unpremeditated murder under Article 118(2) can be overwhelming, but you are not alone. Contact Gonzalez & Waddington to discuss your case and explore your legal options. The right defense can make all the difference.

What are the Types of Murder Under Article 118 UCMJ?

Article 118(1) UCMJ Premeditated Murder
Article 118(2) UCMJ Unpremeditated Murder
Article 118(3) UCMJ Murder while engaging in an act inherently dangerous to another
Article 118(4) UCMJ Murder

What are the Elements of Article 118 UCMJ Unpremeditated Murder?

That (state the name or description of the alleged victim) is dead;
That his/her death resulted from the (act) (omission) of the accused in (state the act or failure to act alleged) at (state the time and place alleged);
That the killing of (state the name or description of the alleged victim) by the accused was unlawful; and
That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.

What is the Maximum Punishment for Article 118(2) UCMJ Unpremeditated Murder?

Maximum Punishment for Article 118(2) UCMJ Unpremeditated Murder committed between 1 Jan 2019 to 27 Dec 2023:

Death or mandatory minimum of confinement for life with eligibility for parole.
Dishonorable Discharge, BCD, Dismissal
Total Forfeitures
Reduction to E-1
Collateral Consequences of a Federal Felony Conviction

Maximum Punishment for Article 118(2) UCMJ Unpremeditated Murder committed after 27 Dec 2023

Under the Sentencing Parameters, Article 118(2) UCMJ Unpremeditated Murder is a Category 6 Offense – Confinement for life with eligibility for parole
Dishonorable Discharge, BCD, Dismissal
Total Forfeitures
Reduction to E-1
Collateral Consequences of a Federal Felony Conviction
Note: The Military Judge MAY impose a period of confinement less than the jurisdictional maximum period of confinement upon finding specific facts that warrant such a sentence.

Combined UCMJ Maximum Punishment Charts

Sample Specifications for Article 118(2) UCMJ Unpremeditated Murder

In that, SrA Roger Clarey, US Air Force, did, at Grand Forks Air Force Base, North Dakota, on or about 24 May 2025, murder Trisha Tuner by means of shooting her with a crossbow.

Model Specifications for Article 118(4) UCMJ Felony Murder

In that ______ (personal jurisdiction data), did, (at/on board—location), on or about ______, murder _______ by means of (shooting (him) (her) with a rifle) (_______).

What are the Definitions for Article 118(2) UCMJ Unpremeditated Murder?

The killing of a human being is unlawful when done without legal justification or excuse.

The intent to kill or inflict great bodily harm may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, it may be inferred that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act that is likely to result in death or great bodily harm, it may be inferred that (he) (she) intended to inflict death or great bodily harm.

Drawing this inference is not required. The intent need not be directed toward the person killed, or exist for any particular time before commission of the act, or have previously existed at all. It is sufficient that the intent to kill existed at the time of the act or omission.

“Great bodily harm” means serious injury. “Great bodily harm” does not mean minor injuries, such as a black eye or bloody nose, but does mean fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries.

Intent to kill or inflict great bodily harm in issue in Article 118(2) UCMJ Unpremeditated Murder Case: When the accused denies the intent to kill or inflict great bodily harm, an instruction on involuntary manslaughter must ordinarily be given.

Sudden passion caused by adequate provocation in issue in Article 118(2) UCMJ Unpremeditated Murder case: When killing in the heat of sudden passion caused by adequate provocation is placed in issue, the military judge must instruct substantially as below. Do not use Instruction 3a-43-1 to instruct on the lesser included offense of voluntary manslaughter; use the instruction below:

The lesser offense of voluntary manslaughter is included in the crime of unpremeditated murder.

What is Voluntary Manslaughter?

“Voluntary manslaughter” is the unlawful killing of a human being, with an intent to kill or inflict great bodily harm, done in the heat of sudden passion caused by adequate provocation. Acts of the accused, which might otherwise amount to murder, constitute only the lesser offense of voluntary manslaughter if those acts were done in the heat of sudden passion caused by adequate provocation.

“Passion” means a degree of anger, rage, pain, or fear which prevents cool reflection. The law recognizes that a person may be provoked to such an extent that in the heat of sudden passion caused by adequate provocation, (he) (she) strikes a fatal blow before (he) (she) has had time to control (himself) (herself).

A person who kills because of passion caused by adequate provocation is not guilty of murder. Provocation is adequate if it would cause uncontrollable passion in the mind of a reasonable person. The provocation must not be sought or induced as an excuse for killing or doing harm.

If you are not satisfied beyond a reasonable doubt that the accused is guilty of murder, but you are satisfied beyond a reasonable doubt that the killing, although done in the heat of sudden passion caused by adequate provocation, was done with the intent to kill or inflict great bodily harm, you may still find (him) (her) guilty of voluntary manslaughter.

What are the Defenses to Article 118(2) UCMJ Unpremeditated Murder?

When an issue of self-defense, accident, or other legal justification or excuse is raised, tailored instructions must be given.

Transferred intent in an Article 118(2) UCMJ Unpremeditated Murder:

When the issue of transferred intent is raised by the evidence, the military judge should instruct substantially as follows:

When a person with intent to kill or inflict great bodily harm attempts unlawfully to kill or inflict great bodily harm upon a certain person but, by mistake or inadvertence, kills another person, the individual is still criminally responsible for a killing with intent to kill or inflict great bodily harm because the intent to kill or inflict great bodily harm is transferred from the intended victim of (his) (her) action to the actual victim.

Suppose you are satisfied beyond a reasonable doubt that the victim named in the specification is dead and that his/her death resulted from the unlawful (act) (omission) of the accused in (state the act or omission alleged) with intent to kill or inflict great bodily harm upon (state the name or description of the individual other than the alleged victim).

In that case, you may still find the accused guilty of the unpremeditated murder of (state the name of the alleged victim).

Timing of the formulation of intent in an Article 118(2) UCMJ Unpremeditated Murder case: If an issue is raised concerning the time of the formulation of the intent to kill or inflict great bodily harm, the military judge may instruct as follows:

The intent to kill or inflict great bodily harm does not have to exist for any measurable or particular time before the (act) (omission) which causes the death. All that is required is that it exists at the time of the (act) (omission) which caused the death.

Voluntary intoxication raised in an Article 118(2) UCMJ Unpremeditated Murder case: If there is some evidence of voluntary intoxication but no issue of insanity, the following instruction may be appropriate, provided there were no other factors that may have combined with the accused’s alcohol consumption to affect his/her mental capacity to form the requisite intent:

Although the accused must have had the intent to kill or inflict great bodily harm, voluntary intoxication, by itself, is not a defense to unpremeditated murder. Voluntary intoxication, standing alone, will not reduce unpremeditated murder to a lesser degree of unlawful killing.

Brain death instruction in Article 118(2) UCMJ Unpremeditated Murder cases: The military standard for death includes brain death. An individual is dead who has sustained either (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of brain function. See US v. Gomez, 15 MJ 954 (ACMR 1983) and US v. Jefferson, 22 MJ 315 (CMA 1986). Instruction 7-24, Brain Death, may be adapted for this circumstance.

Overview of Article Article 118(2) UCMJ Unpremeditated Murder

Article 118(2) of the Uniform Code of Military Justice (UCMJ) addresses the crime of unpremeditated murder. This provision pertains to situations where an individual unlawfully kills another person without premeditation but with intent to kill or inflict great bodily harm. Unpremeditated murder under Article 118(2) differs from premeditated murder in that the latter requires proof of a prior intent to kill, often involving planning or deliberation before the act.

Hiring a Military Defense Lawyer for Article 118(2) UCMJ Unpremeditated Murder

In contrast, unpremeditated murder occurs in the heat of the moment, driven by a sudden intention rather than a preexisting plan. The prosecution must demonstrate that the accused had the specific intent to kill or cause serious injury at the time of the act, but it does not need to establish that the act was planned.

Selecting the Best Military Defense Lawyers for Article 118(2) UCMJ Unpremeditated Murder

Convictions under this article can lead to severe penalties, including life imprisonment or other lengthy sentences, reflecting the seriousness of the offense despite the absence of premeditation. The military justice system takes such crimes seriously, ensuring that service members who commit unpremeditated murder face appropriate legal consequences. This ensures discipline and order within the ranks, maintaining the integrity of the military institution.