§ Article 118 : Murder

Article 118 of the UCMJ (10 U.S.C. § 918) defines murder as unlawfully killing a human being, without justification or excuse, when the accused has a premeditated design to kill; intends to kill or inflict great bodily harm; is engaged in an act inherently dangerous to another that evinces a wanton disregard of human life; or is engaged in the perpetration or attempted perpetration of one of the offenses listed in the statute.

Who It Applies To

Any person subject to the UCMJ who, without justification or excuse, unlawfully kills a human being when that person:

1. has a premeditated design to kill;
2. intends to kill or inflict great bodily harm;
3. is engaged in an act that is inherently dangerous to another and evinces a wanton disregard of human life; or
4. is engaged in the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.

What It Covers

Premeditated murder — Article 118(1)

1. A certain named or described person is dead.
2. The death resulted from the act or omission of the accused.
3. The killing was unlawful.
4. At the time of the killing, the accused had a premeditated design to kill.

Intent to kill or inflict great bodily harm — Article 118(2)

1. A certain named or described person is dead.
2. The death resulted from the act or omission of the accused.
3. The killing was unlawful.
4. At the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.

Act inherently dangerous to another — Article 118(3)

1. A certain named or described person is dead.
2. The death resulted from the intentional act of the accused.
3. The act was inherently dangerous to another and showed a wanton disregard for human life.
4. The accused knew that death or great bodily harm was a probable consequence of the act.
5. The killing was unlawful.

During certain offenses — Article 118(4)

1. A certain named or described person is dead.
2. The death resulted from the act or omission of the accused.
3. The killing was unlawful.
4. At the time of the killing, the accused was engaged in the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.

Key rules

• Unlawful killing. Killing a human being is unlawful when done without justification or excuse (see R.C.M. 916). Whether an unlawful killing is murder or a lesser offense depends on the circumstances. The offense is committed where the act or omission occurred, even if the victim died elsewhere, and the death must follow from an injury that resulted from the act or omission.
• Premeditation requires that the thought of taking life was consciously conceived and the fatal act intended. The intention need not exist for any particular length of time; once a fixed purpose to kill has been deliberately formed, it is immaterial how soon it is carried out. Premeditation may be inferred from the circumstances. If an accused with a premeditated design to kill one person kills another by mistake, the premeditation transfers to the actual victim.
• Intent to kill or inflict great bodily harm may be inferred from an intentional act likely to result in death or great bodily injury. It need not be directed at the person killed or exist for any time before the act. “Great bodily harm” means serious injury and is synonymous with “grievous bodily harm.”
• Voluntary intoxication not amounting to legal insanity may reduce premeditated murder to unpremeditated murder, but it does not reduce murder to manslaughter or any other lesser offense.
• Inherently dangerous act. Wanton disregard of human life is shown by heedlessness of the probable consequences or indifference to the likelihood of death or great bodily harm — for example, throwing a live grenade toward another in jest. The accused must know that death or great bodily harm was a probable consequence.
• During certain offenses. When an unlawful killing results from the perpetration or attempted perpetration of a listed offense, it is murder even if unintended or accidental. The underlying offense may be charged separately.

Maximum Punishment

Maximum authorized punishment.

• Article 118(1) or (4): death. Mandatory minimum: imprisonment for life with eligibility for parole, unless the accused is sentenced in accordance with a plea agreement under Article 53a.
• Article 118(2) or (3): any punishment other than death that a court-martial may direct.

Sentencing parameters. Article 118(1) or (4), Category 6 (life with eligibility for parole). Article 118(2) or (3), Category 5 (240–480 months). Sentencing parameters and criteria do not apply to the decision whether to impose death.

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

An unlawful killing with intent to kill or inflict great bodily harm is voluntary manslaughter under Article 119, not murder, if committed in the heat of sudden passion caused by adequate provocation. An unintended killing by culpable negligence, or during an offense directly affecting the person other than those listed in Article 118(4), is involuntary manslaughter under Article 119. A killing by simple negligence may be addressed by the Article 134 negligent homicide offense, and the death of an unborn child by Article 119a.

What the Provision Does

Article 118 defines the forms of unlawful killing that military law treats as murder, and reserves the most severe authorized punishments for premeditated murder and killings during the listed offenses.

History

Article 118 appeared in the original 1950 UCMJ and was codified at 10 U.S.C. § 918 in 1956. Congress has amended the list of offenses in clause (4) several times (2006, 2011, 2014, and 2016) as the sexual-offense articles were restructured, and in 1992 changed “others” to “another” in clause (3). In December 2023, Pub. L. 118-31 replaced gendered pronouns and added the exception for sentences imposed in accordance with a plea agreement under Article 53a.

Sources

• 10 U.S.C. § 918 (Article 118, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, R.C.M. 916 and R.C.M. 1004
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 56
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (negligent homicide is not a lesser included offense of premeditated murder)
• United States v. Dobson, 63 M.J. 1 (C.A.A.F. 2006) (explaining that unpremeditated murder, unlike premeditated murder, does not require a fixed intent to kill formed after consideration of the act)