Table Content
Article 80 of the Uniform Code of Military Justice establishes criminal liability for attempting to commit any offense punishable under the UCMJ. An attempt occurs when a service member engages in an overt act that is a direct movement toward committing the intended offense and the act amounts to more than mere preparation. The offense is complete even if the underlying crime is not achieved.
Article 80 criminalizes conduct in which an individual purposefully takes a substantial step toward completing a UCMJ offense. The act must unequivocally demonstrate that the person intended the crime to occur. Abandonment or failure to complete the offense does not negate the attempt once the substantial step has been taken.
Any person subject to the UCMJ may be charged under Article 80. This includes active-duty service members, certain reservists on duty status, cadets and midshipmen, and others with statutory UCMJ applicability. Jurisdiction is determined by the individual’s status at the time of the attempt.
Article 80 requires specific intent to commit the targeted offense. The actor must knowingly and purposely intend the criminal result; negligence or recklessness is insufficient to establish an attempt. The prosecution must prove both the intent and the overt act toward completion.
Attempt liability may arise independently of conspiracy or accomplice theories, but these doctrines can operate concurrently. A person who aids, encourages, or assists another in taking substantial steps toward a UCMJ offense may face liability under Article 80 through principles of aiding and abetting. Attempt charges remain distinct from conspiracy, which requires an agreement rather than an overt act toward completing the offense.
The government must prove each element of an Article 80 attempt beyond a reasonable doubt. These elements establish that the accused intended to commit a specific offense under the Uniform Code of Military Justice and took concrete steps demonstrating that intent.
The mens rea required under Article 80 is a specific intent to commit the underlying substantive offense. This intent must be directed toward the completion of the exact crime charged; generalized criminal intent is insufficient. The government must show that the accused consciously and purposefully sought the commission of that offense.
The actus reus consists of an overt act that goes beyond preparatory steps. The act must represent a direct movement toward the commission of the intended crime and must be sufficiently concrete to demonstrate that the offense would have occurred except for an intervening circumstance outside the accused’s control.
Statutorily, an “overt act” refers to conduct that clearly manifests the accused’s intent and is a substantial step toward the completion of the offense. Article 80 further clarifies that impossibility, whether factual or legal, does not negate liability so long as the required intent and overt act are present.
Punishment under the Uniform Code of Military Justice depends on the date of the alleged offense. Offenses committed before December 27, 2023 are sentenced under a maximum_punishment model, while offenses on or after that date are sentenced under the sentencing_category structure established by the Military Justice Act of 2016 as implemented through later amendments.
Under the pre_December 27, 2023 framework, Article 80 (Criminal Attempts) incorporates the punishment of the offense attempted. The maximum authorized punishment is:
Under the revised sentencing system, Article 80 does not have a stand_alone sentencing category. Instead, the sentencing category applicable to the offense attempted governs the confinement range and the availability of punitive separations. Accordingly:
Under the sentencing_category model, each offense is assigned to a predefined category with structured confinement ranges. This system differs from the earlier maximum_punishment approach by replacing individualized maximums for each offense with standardized ranges, while still linking Article 80 attempts to the punishment scheme of the completed offense.
Charging decisions under Article 80 are shaped by the specific fact pattern, the way allegations surface, and command discretion after investigative input. In practice, prosecutors use Article 80 to address situations where a service member’s conduct clearly advances toward an offense but does not culminate in its completion, whether due to intervention, abandonment, or factual impossibility.
Article 80 charges most often arise from conduct where substantial steps toward an underlying offense are documented through messages, eyewitness accounts, surveillance, or controlled law-enforcement operations. Typical scenarios include:
Investigations typically begin with a report from a fellow service member, digital evidence flagged during routine monitoring, or suspicious activity observed by supervisors. Law-enforcement agencies such as CID, NCIS, OSI, or CGIS may initiate undercover operations, controlled communications, or forensic device examinations to document substantial steps toward the attempted offense. Command-directed inquiries or preliminary inquiries often precede formal involvement by military law enforcement, particularly when allegations emerge through unit-level observations or administrative channels.
Prosecutors frequently use Article 80 to capture incomplete misconduct while also charging the underlying offense in the alternative. This allows fact-finders to consider both completion and attempt theories. Charge-stacking may occur when the same conduct touches multiple statutory provisions, especially where regulatory violations or false statements accompany the attempt. Overlap is common in offenses involving digital evidence, where communications, preparatory acts, and regulatory breaches form distinct but related bases for separate charges under the UCMJ.
Prosecutions under UCMJ Article 80 often turn on the government’s ability to establish each required element, the reliability of available evidence, and the interpretation of statutory language defining attempt liability. Disputes frequently center on how intent is inferred, what constitutes a substantial step, and whether the evidence is admissible and credible.
Contested issues frequently arise from the statutory elements of attempt, particularly the requirement that the accused performed an act amounting to more than mere preparation. Litigation often focuses on whether the government has demonstrated a substantial step that unequivocally reflects movement toward the commission of the intended offense. Other disputes involve whether the underlying offense was legally possible, even if factually impossible, and whether the evidence demonstrates that the accused’s conduct was sufficiently proximate to the completion of the offense.
The government must typically establish a specific intent to commit the underlying offense, and this requirement is a frequent focal point of litigation. Contested issues may include whether words, conduct, or circumstantial evidence adequately show the accused’s state of mind, and whether alternative explanations for the accused’s actions undermine the inference of intent. Where the underlying offense includes additional mens rea elements—such as knowledge of certain circumstances—courts often examine whether the evidence supports each mental component. Because attempts commonly involve incomplete conduct, intent is often inferred indirectly and thus becomes a central point of dispute.
Credibility assessments commonly influence fact-finding in Article 80 cases. Witness recollections about the accused’s actions, statements, or preparatory steps may conflict, requiring careful evaluation of consistency, corroboration, and reliability. Investigators’ interpretations of digital communications, surveillance footage, or forensic results may also be scrutinized, particularly where factual ambiguities affect whether actions qualify as a substantial step toward the intended offense.
Evidentiary disputes often involve the admissibility of statements made by the accused, including issues related to rights warnings, voluntariness, and interrogation conditions. Searches and seizures—whether physical, electronic, or digital—may raise questions regarding authorization, scope, or reasonableness. Courts regularly address the authentication of digital records, the reliability of metadata, and whether documentary or electronic evidence accurately reflects the accused’s conduct or intent.
Article 80 litigation sometimes turns on how statutory language describing attempts is interpreted, including terms such as “overt act,” “substantial step,” or “more than mere preparation.” Ambiguities in cross-referenced provisions or definitions of underlying offenses can also generate disputes, particularly when determining whether the accused’s alleged conduct is legally sufficient to constitute an attempt under the UCMJ.
Understanding lesser included offenses closely connected to attempted crimes
Conspiracy charges that often accompany attempted misconduct under the UCMJ
Solicitation as a related inchoate offense frequently considered with attempts
Liability as a principal when involved in planning or aiding an attempted offense
Collateral consequences are administrative, professional, or legal effects that may arise from a conviction under UCMJ Article 80—Criminal Attempts—independently of the sentence imposed by a court-martial. These consequences can affect a service member’s career, post-service opportunities, and certain legal obligations outside the military justice system.
A conviction for attempted misconduct under Article 80 may prompt administrative actions such as separation processing. The resulting discharge characterization—honorable, general, or under other than honorable conditions—may depend on the nature of the attempted offense and the member’s overall record. The conviction can also affect eligibility for promotion, reenlistment, or continuation on active duty. In some cases, it may influence retirement qualifications or benefits if the misconduct is deemed service-discrediting or inconsistent with continued military service.
Article 80 convictions often factor into security clearance adjudications because they may reflect concerns about reliability, judgment, or trustworthiness. This can affect access to classified information or assignment to sensitive duties. Loss or denial of a clearance may indirectly limit career fields within the military and can also influence post-service employment in sectors requiring clearance eligibility, such as defense contracting or certain federal positions.
Some attempted offenses, particularly those involving conduct of a sexual nature, may trigger federal or state sex offender registration requirements. Whether registration applies depends on the specific offense attempted and the laws of the jurisdiction where the individual resides. Registration and reporting obligations are determined by federal statutes and state regulatory systems, not by the UCMJ itself.
Conduct underlying an Article 80 conviction may also violate federal or state criminal laws. In such cases, civilian authorities may pursue separate prosecution. Additionally, certain conduct may create potential civil liability, such as claims for damages arising from attempted harm.
For non-citizens or naturalized service members, a conviction may affect immigration status, admissibility, or future naturalization processes. Consequences depend on how federal immigration law categorizes the underlying offense or attempt, including whether it is considered a crime involving moral turpitude or another disqualifying category.
During the investigative phase of an Article 80 attempt allegation, decisions are made that influence the trajectory of the case long before any charges are preferred. Actions taken at this stage can determine how facts are interpreted, what evidence is available, and how investigators and command authorities assess a service member’s conduct.
Military investigators typically collect statements, digital data, and documentary materials early in the process. Once gathered, this evidence often shapes later assumptions about intent and conduct. Early legal involvement can help ensure that statements are not taken out of context, that digital evidence is preserved appropriately, and that potentially exculpatory material is not overlooked. Both uniformed counsel and civilian military defense lawyers can assist in navigating these early evidentiary steps.
Interviews conducted by command or law-enforcement personnel often occur before a service member fully understands the allegations or the scope of the investigation. Without legal guidance, individuals may make statements that appear inconsistent, incomplete, or that introduce issues unrelated to the underlying allegation. These interviews can become central evidence in later proceedings.
Administrative or command-directed inquiries may run parallel to, or independent from, criminal investigations. Early responses in these processes—such as providing written statements or participating in inquiries—can influence command perceptions and affect decisions about administrative measures, even if criminal charges are not pursued.
Choices regarding searches, statements, or cooperation during initial inquiries can have effects throughout the lifecycle of a case. These early actions may later be used to corroborate intent, establish timelines, or support administrative findings that persist beyond the criminal process.
Gonzalez & Waddington is a civilian military defense law firm that focuses on representing service members facing allegations under the Uniform Code of Military Justice. The firm handles a wide range of military criminal matters across all branches of the armed forces, offering experienced guidance to clients navigating the complexities of military investigations, administrative actions, and courts-martial. Their attorneys are well-versed in the procedures, rules, and unique challenges associated with UCMJ cases, including those involving Article 80: Criminal Attempts.
If you are facing an allegation related to UCMJ Article 80 or have questions about your rights during an investigation or administrative action, you may contact Gonzalez & Waddington for a consultation. The firm can provide information about the process and discuss how its attorneys approach the defense of service members in these matters.
Q: What does UCMJ Article 80: Criminal Attempts cover?
A: Article 80 addresses situations where a service member takes a substantial step toward committing an offense under the UCMJ but does not successfully complete it. The article focuses on intent and actions demonstrating a clear move toward the crime, even if circumstances prevent completion. It distinguishes between mere preparation and conduct that shows a direct attempt to carry out the prohibited act.
Q: What is the maximum punishment for UCMJ Article 80: Criminal Attempts?
A: The maximum punishment for an Article 80 violation is generally the same as the maximum punishment authorized for the completed offense, except where specific limitations apply. Sentences can vary widely depending on the underlying offense, the nature of the attempt, and other case factors considered by the court. Each case is evaluated individually based on the evidence and applicable sentencing rules.
Q: Can an allegation under this article lead to administrative separation even without a conviction?
A: Yes. Commands may initiate administrative separation based on substantiated misconduct or adverse information, even without a court_martial conviction. The standard of proof for administrative actions is lower than for criminal proceedings, allowing separation boards or commanders to consider evidence that may not meet the threshold for prosecution. Each case depends on the facts, the service member’s record, and applicable service regulations.
Q: Do I need a civilian military defense lawyer for an investigation under this article?
A: Service members have the right to consult with military defense counsel at no cost, and they may hire civilian military defense counsel if they choose. A civilian attorney can provide additional support and continuity, especially during lengthy investigations. Whether to retain one depends on the complexity of the case, the potential consequences, and the service member’s personal circumstances and preferences.
Q: Can an Article 80 allegation be resolved without a court_martial?
A: In some situations, commands may choose to address alleged attempts under Article 80 through nonjudicial punishment, administrative measures, or counseling rather than a court_martial. The decision depends on the seriousness of the underlying offense, available evidence, and command discretion. Nonjudicial or administrative actions can still have significant career implications, even when no criminal charges are pursued.
Q: Which investigative agencies typically handle Article 80 allegations?
A: The investigative agency depends on the nature of the alleged attempted offense. For example, military criminal investigative organizations such as CID, NCIS, or OSI may investigate attempts involving serious misconduct. Security Forces or Military Police may handle less severe matters. These agencies gather statements, digital evidence, and other materials to determine whether the conduct constitutes a substantial step toward a UCMJ offense.
You can review the individual Articles of the UCMJ and learn more about military law by clicking here: UCMJ Articles and Military Justice Resources. You can also explore official military law guidance from the Army Judge Advocate General’s Corps at jagcnet.army.mil.
A renowned military criminal defense attorney and best-selling author, Michael Waddington defends clients worldwide in serious cases and trains lawyers in advanced cross-examination. He is frequently featured by major media outlets like CNN and 60 Minutes.
Alexandra González-Waddington is a top military and civilian defense attorney who has handled high-profile sexual assault, violent crime, and war-crimes cases globally. Her work is widely recognized by media outlets including 60 Minutes and ABC’s Nightline.
