Communicating a Threat Defense (Article 115 UCMJ) | Social Media Defense Lawyers

Article 115 of the UCMJ makes it a crime to communicate a threat. Language expressing a present determination or intent to wrongfully injure someone’s person, property, or reputation now or in the future. In the military, a single angry text or a comment made in frustration at work can turn into a criminal charge. I’m Alexandra González-Waddington, civilian military defense lawyer and co-founder of Gonzalez & Waddington. Here’s what Article 115 requires, what it carries, and how threat cases are defended.

First, the background. Communicating a threat used to be charged under Article 134, the general article. When the UCMJ was reorganized in 2019, it got its own article, Article 115, which also covers threats and hoaxes involving bombs, explosives, and weapons of mass destruction. Because it’s now a stand-alone article, the government no longer has to prove that the threat was prejudicial to good order and discipline or service discrediting. It just has to prove the threat.

Second, the elements. The government has to prove that you communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person. That the communication was made known to that person or to a third person, and that the communication was wrongful. Three things in there surprise people. One, the threat doesn’t have to be delivered to the person threatened.

Telling a co-worker, “I’m going to kill my sergeant.” can be enough. Two, a threat to injure someone’s reputation counts, not just their body or property. Three, wrongful has teeth. Under decisions from the military’s highest court and the Supreme Court, words alone aren’t enough.

The government has to prove something about your state of mind, that you meant it as a threat, or at least consciously disregarded the risk it would be taken as one. Jokes, venting, hyperbole, and obviously conditional statements often aren’t criminal threats. Third, the punishment. Communicating a threat carries up to 3 years of confinement and a dishonorable discharge. A threat or a hoax involving explosives or weapons of mass destruction carries up to 10 years.

And the administrative consequences can be worse than the criminal ones. A commander-directed mental health evaluation, removal of your weapon, loss of a security clearance, and administrative separation. Fourth, the fact patterns. Angry texts during a breakup or a divorce. An outburst at a supervisor or NCO after a bad counseling.

A comment in the workplace about a mass shooting made as dark humor. A social media post. A message to a former friend that ends with, “You’ll regret this.” Threats to expose someone’s secrets unless they do something, which can also be charged as extortion under Article 127. And statements made to a chaplain, a behavioral health provider, or a buddy at a moment of crisis that someone else then reports.

Fifth, how these cases start. With a report. The person threatened, or someone who heard about it, tells the chain of command or law enforcement. The command’s first concern is safety, so it often moves fast. Weapons are secured, a no-contact order or military protective order may be issued, and a mental health evaluation may be ordered.

Then, CID, NCIS, OSI, or the military police take statements, collect the messages, and ask you for an interview. In that interview, an agent may ask, “Did you mean it?” Either answer can hurt you. That’s a question to answer through your lawyer. Sixth, the defenses.

Context. The full conversation often shows the statement was a joke, sarcasm, hyperbole, or venting. And the people who heard it didn’t take it seriously. Intent and state of mind. What you meant and whether you were reckless about how it would be understood.

Conditional or impossible statements. “If you ever touch my kids again.” reads differently than “I’m coming for you tonight.” Lack of a present determination. Describing anger isn’t the same as expressing a plan.

Identity and authenticity. Who actually sent the message, especially with shared accounts or screenshots. And the First Amendment, which still protects a lot of offensive, angry, and ugly speech. Witnesses who knew you and the situation are often the best evidence. Seventh, related charges.

Threats are commonly charged alongside domestic violence under Article 128 Bravo, stalking under Article 130, disrespect or insubordination under Articles 89 and 91, and violations of protective orders. When a threat targets a spouse or partner, the government may charge it as domestic violence under Article 128 Bravo, which carries more time. Eighth, what to do. One, stop communicating with the person completely. Two, don’t explain yourself to your chain of command or to investigators without a lawyer.

“I didn’t mean it.” is still a statement about it. Three, preserve the full message history, including what came before and after the statement. Four, comply with any no-contact order, weapons restriction, or mental health evaluation, and talk to your lawyer about what you say in that evaluation. Five, get counsel early because many threat cases can be resolved before charges if the context comes out first.

At Gonzalez & Waddington, we’ve seen countless threat allegations that looked serious on paper and fell apart once the full conversation was in front of the decision-maker. So, what is communicating a threat under Article 115 of the UCMJ? Wrongfully expressing an intent to injure someone’s person, property, or reputation, carrying up to 3 years and a dishonorable discharge, and up to 10 for bomb threats and hoaxes. Stop contact, say nothing, preserve everything, and get a lawyer. I’m civilian military defense lawyer Alexandra González-Waddington with Gonzalez & Waddington.

We defend service members worldwide. You can learn more at ucmjdefense.com or call 1-800-921-8607 for a free, confidential consultation. >> When the command knows you’ve got real defense, the game changes.