§ Article 80 : Attempts

Article 80 of the UCMJ (10 U.S.C. § 880) punishes attempting to commit any offense under the UCMJ. It applies when a person acts with the specific intent to commit an offense and takes a step beyond mere preparation toward committing it, even though the offense is never completed.

Who It Applies To

Any person subject to the UCMJ who, with the specific intent to commit an offense under the UCMJ, does an act that is more than mere preparation and that tends to bring about that offense, even though the offense is not completed.

What It Covers

1. The accused did a certain overt act.
2. The act was done with the specific intent to commit a certain offense under the UCMJ.
3. The act amounted to more than mere preparation.
4. The act apparently tended to effect the commission of the intended offense.

Preparation — devising or arranging the means or measures for an offense — is not enough. The overt act must be a direct movement toward committing the offense, although it need not be the last act before completion.

Related rules

• Failure to complete. Once the specific intent and a qualifying overt act exist, the attempt is complete; the reason the offense was not finished does not undo it.
• Factual impossibility. A person who acts with the required intent is guilty of an attempt if the conduct would have been the offense had the circumstances been as the person believed — for example, pulling the trigger of a gun that, unknown to the person, would not fire.
• Completed offense. A person may be convicted of an attempt even if the evidence at trial shows that the offense was completed.
• Solicitation is not an attempt. Asking another person to commit an offense is addressed by Article 82.
• Attempts addressed by other articles. Attempts under Article 85 (desertion), Article 94 (mutiny or sedition), Article 100 (subordinate compelling surrender), Article 103a (espionage), Article 103b (aiding the enemy), Article 119a (death or injury of an unborn child), and Article 128 (assault) are addressed by those articles directly.

Maximum Punishment

Maximum authorized punishment. The maximum punishment authorized for the offense attempted, with these limits: death may not be adjudged; confinement may not exceed 20 years, except for attempted murder; and mandatory minimum punishments do not apply, except for attempted rape or sexual assault under Article 120(a) or (b) and attempted rape or sexual assault of a child under Article 120b(a) or (b).

Sentencing parameters. Article 80 is classified as “dependent on underlying offense.”

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 attempt can be committed by one person acting alone. Conspiracy (Article 81) requires an agreement between two or more people plus an overt act, which can be far more preliminary than the act an attempt requires. Solicitation (Article 82) punishes asking or advising another person to commit an offense, whether or not that person acts.

What the Provision Does

Article 80 makes an act done with the specific intent to commit an offense, and amounting to more than mere preparation, punishable even when the offense is not completed.

History

The statutory language traces to the original 1950 Uniform Code of Military Justice and was re-enacted in its current form on August 10, 1956.

Sources

• 10 U.S.C. § 880 (Article 80, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 4
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C