§ Article 132 : Retaliation

Article 132 of the UCMJ (10 U.S.C. § 932) punishes taking or threatening an adverse personnel action, or withholding or threatening to withhold a favorable personnel action, against a person with intent to retaliate for that person reporting or planning to report a criminal offense, or making or planning to make a protected communication — or with intent to discourage such reporting or communication.

Who It Applies To

Any person subject to the UCMJ who, with intent to retaliate against a person for reporting or planning to report a criminal offense, or for making or planning to make a protected communication, or with intent to discourage a person from doing so, wrongfully takes or threatens to take an adverse personnel action against that person, or wrongfully withholds or threatens to withhold a favorable personnel action.

What It Covers

Retaliation

1. The accused wrongfully took or threatened to take an adverse personnel action against any person, or withheld or threatened to withhold a favorable personnel action with respect to any person.
2. At the time, the accused intended to retaliate against any person for reporting or planning to report a criminal offense, or for making or planning to make a protected communication.

Discouraging a report or protected communication

1. The accused wrongfully took or threatened to take an adverse personnel action against any person, or withheld or threatened to withhold a favorable personnel action with respect to any person.
2. At the time, the accused intended to discourage any person from reporting a criminal offense or making a protected communication.

Statutory definitions

• A protected communication is a lawful communication to a Member of Congress or an Inspector General; or a communication to a covered individual or organization in which a member complains of, or discloses information the member reasonably believes is evidence of, a violation of law or regulation (including one prohibiting sexual harassment or unlawful discrimination), gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
• Unlawful discrimination means discrimination based on race, color, religion, sex, or national origin.

Key rules

• The offense addresses the abuse of otherwise lawful authority. It may be committed by any person subject to the UCMJ with authority to initiate, forward, recommend, decide, or otherwise act on a personnel action, and it does not prohibit the lawful exercise of command authority to discipline or reward.
• A personnel action is any action that affects, or could affect, a service member’s current position or career — such as promotion, discipline, transfer, evaluations, pay or benefit decisions, relief, separation, discharge, or referral for mental health evaluation — and, under the Manual, similar actions affecting a civilian employee.
• Intent to retaliate means acting for the purpose of reprisal, retribution, or revenge. For a threat, the accused need not actually have intended to carry it out, but a statement shown to be in jest or for an innocent purpose is not the offense.
• A criminal offense includes violations of the UCMJ, the United States Code, or state law.
• The Secretary of Defense and the Service Secretaries may prohibit other retaliatory actions by regulation, and violations may be punished under Article 92.

Maximum Punishment

Maximum authorized punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

Sentencing parameters. Category 2 (1–36 months).

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 132 addresses personnel actions taken or withheld to retaliate for, or discourage, a report or protected communication. Article 131g addresses interference with a pending adverse administrative proceeding, and Article 131b conduct intended to obstruct a criminal or disciplinary case. Retaliatory conduct prohibited only by regulation may be addressed by Article 92.

What the Provision Does

Article 132 applies to taking or threatening an adverse personnel action, or withholding or threatening to withhold a favorable one, with intent to retaliate for or discourage a report of a criminal offense or a protected communication. Under the Manual, the accused must intend to retaliate, but proof that the accused actually intended to take the adverse action or withhold the favorable one is not required.

History

Article 132 was added to the UCMJ by the Military Justice Act of 2016 (Pub. L. 114-328, § 5450), effective January 1, 2019, and received a cross-reference correction in 2017 (Pub. L. 115-91). The Article 132 designation previously belonged to frauds against the United States, which is now Article 124. In 2023, the Manual’s definition of “personnel action” was expanded to include actions affecting civilian employees.

Sources

• 10 U.S.C. § 932 (Article 132, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 89
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), Appendix 17 (Analysis of Punitive Articles)
• 10 U.S.C. § 1034 (protected communications; prohibition of retaliatory personnel actions)