Article 80 UCMJ

By definition, the elements required for an Article 80 violation include:

• The accused did a certain overt act;
• The act was done with specific intent to commit a certain offense under the code;
• The act amounted to more than mere preparation; and
• The act apparently tended to achieve the commission of the intended offense.

Breakdown of Article 80 – Attempts

The specific elements of UCMJ Article 80 (each of which must be met to the requisite level of proof) include:

a) The accused did a certain overt act.

The overt act need not be specifically articulated in the specification, and the overt act need not be illegal.¹ An example of this can be found in United States v. Johnson, 22 C.M.R. 278 (C.M.A. 1957), where the accused was found guilty of attempted desertion where all acts occurred within limits of legitimate pass.

b) The act was done with the specific intent to commit a certain offense under the code.

Any attempt charge must have facts to support or prove the requisite specific intent. In a prosecution for attempted violation of a lawful general regulation, under Article 92(1), the accused must have had the specific intent to commit the proscribed act, and it is immaterial whether the accused knew the act violated any particular provision of any regulation. ²

For example, attempted murder requires specific criminal intent to kill, even though murder may require a lesser intent. The prosecution must find circumstantial evidence sufficient to prove intent to kill to secure an attempted murder charge.³ According to United States v. Roa, 12 M.J. 210 (C.M.A. 1982), there can be no “attempt” to commit involuntary manslaughter by “culpable negligence.” Attempted rape, on the other hand, requires specific intent to have sexual intercourse by force and without consent, even though rape is a general intent crime.⁴

c) The act amounted to more than mere preparation.

For the accused to be guilty of an attempt, the overt acts tending toward the commission of the consummated offense must amount to more than mere preparation and constitute at least the beginning of its effectuation.

However, “[t]here is no requirement under the law of attempts that the trip to the doorstep of the intended crime be completed in order for the attempt to have been committed.” This can be found in the case of United States v. Anzalone, 41 M.J. 142 (C.M.A. 1994), which affirms assault by attempt. In this case, the accused retrieved his rifle, locked and loaded a round in the chamber, and started toward the victim’s tent, even though he was stopped before he reached a point where he could have inflicted harm.

In another case, the article holds that giving a middleman or “hit man” a map, automobile license number, and guidance, where the accused believed the hit man had already arrived in town for the job, was sufficient to warrant an overt act for attempted murder.⁵

d) Substantial step.

The overt act must be a “substantial step” toward the commission of the crime. As to whether it is merely preparatory or a substantial step is determined by the courts on a case-by-case basis. According to United States v. Byrd, 24 M.J. 286 (C.M.A. 1987), the test is whether the overt act is a “direct movement towards the commission of the crime … strongly corroborative of the accused’s criminal intent and indicative of resolve to commit the offense.”

e) The act apparently tended to affect the commission of the intended offense.

The overt act need not be the ultimate step in the consummation of the crime. It is sufficient if it is one that in the ordinary and likely course of events and if not interrupted by extraneous causes, would result in the commission of the offense itself. An example of this can be found once again in the case of United States v. Johnson, 22 C.M.R. 278. Although within the 50-mile limit of his pass, the accused’s walking within the prohibited distance from the East German border, after unsuccessful attempts to get taxi drivers to cross the border, was a sufficient overt act for attempted desertion.

In another example, the accused (and accomplices) made plans, procured implements, and went to the site of the crime with tools for the unlawful purpose of robbing exchange. This was an overt act sufficient to constitute direct movement to the commission of robbery.⁶

There is a whole other section on lesser included offenses. But the military courts have determined that attempts qualify as a lesser included offense of the original offense. For example, the military court ruled in United States v. Brown, 63 M.J. 735 (A. Ct. Crim. App. 2006), it was “error not to instruct on attempted murder when the evidence showed that the victim may have already been dead when shot.”

UCMJ Article 80 Punishment

In the case of being charged or alleged to have violated a regulation under Article 80, the Government does not have to show actual knowledge of the regulation; the accused need only have intended to commit the proscribed act in question.⁷

Most attempts to commit an overt act are charged under Article 80, but if the offense accompanied the attempt of any of the following acts, the corresponding punishment is specifically outlined in a separate article:

• Desertion (Article 85 UCMJ)
• Mutiny or Sedition (Article 94 UCMJ)
• Subordinate Compelling (Article 100 UCMJ)
• Aiding the Enemy (Article 104 UCMJ)
• Espionage (Article 106a UCMJ)
• Attempting to Kill an Unborn Child (Article 119a UCMJ)
• Assault (Article 128 UCMJ)

According to the statute, “any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.” Those that are found to be in violation of Article 80 face the same maximum punishment as they would for the successful commission of the crime. However, neither the death penalty nor a sentence exceeding 20 years confinement (except for cases of attempted murder) may apply.

So, for example, if a service member is found guilty of attempted larceny, they may face the maximum penalty for larceny as found in Article 121 of the UCMJ. This means that a person subject to a conviction for attempting to commit larceny faces forfeiture of all pay and allowances, a dishonorable discharge, and between 6 months to 2 years of confinement, depending on whether the attempted offense involved military property or not.

For another example, Article 56 of the UCMJ states that any conviction for rape, sexual assault, rape or sexual assault of a child, forcible sodomy, or attempts of any of these sexual offenses requires a Dishonorable Discharge or Dismissal upon conviction. Whether you face charges of attempted conspiracy, attempted adultery, or any other overt act under military law, you face the maximum punishment authorized by the code. It is absolutely imperative that in such circumstances, you equip the help of a skilled military criminal defense attorney like Aden Wilkie, the Devil Dog Defender.

Can Aiding and Abetting be a Violation of  Article 80?

To be found guilty of aiding or abetting an attempted crime, the actual perpetrator must have attempted the commission of the underlying offense. For example, in the case of an accused aided and abetted perpetrator who took a “substantial step” with intent to distribute cocaine to an undercover officer, the perpetrator’s failure to go through with the transaction did nothing to alter her or the accused’s liability.⁸