UCMJ Article 80: Attempts

Article 80 of the UCMJ defines the actions and intentions a service member must take during an attempted crime to be held accountable for that crime, even though the offense was unsuccessful. The Manual for Courts-Martial differentiates attempted crimes from completed crimes because in the former the intended crime was committed and in the latter, the intended crime succeeded.

However, just because you’ve been charged with an attempted crime under Article 80, does not mean you’ll get off with a slap on the wrist:

  • Article 80 defines punishments for service members accused of an attempted crime. Should you be found guilty, you will be subject to the same maximum penalty as stated in the article of the UCMJ about the original offense.
  • Prosecutors are free to seek the maximum sentencing possible. And they will attempt to convince a judge or jury that your intentions make you unfit to wear your uniform or even walk the streets as a free man or woman.
  • Depending on your attempted crime, you could face up to 20 years in prison, as well as the loss of all military benefits and pay and the stripping of your rank to an E-1.

You have a right to a defense team that is experienced in fighting Article 80 charges. Before you make any assumptions about your case, contact Bilecki & Tipon today.

Defining the Elements of Article 80 Attempts

An attempted car jacking by a military memberArticle 80 of the UCMJ defines certain elements which are required to prove beyond a reasonable doubt the guilt of the accused service member:

  • That the accused performed an overt action
  • That the overt action was done with the intention of committing an offense under an article of the UCMJ
  • That this overt action went beyond merely preparing for the crime
  • That this overt action, had it been successful, would have broken the law under the UCMJ.

Fighting Back Against an Article 80 Offense

The nature of Article 80 makes it very difficult for the prosecution to get the conviction they want—and in some cases, their overreach can be a boon for the defense.

Bilecki & Tipon has seen many instances where the prosecution had nothing but speculation concerning the service member’s true intent. And a well-prepared defense can use this to demolish the prosecution’s case:

  • Article 80 clearly states that to be charged with an attempted offense, the act must go beyond the “mere preparation and tending even though he/she fails to effect its commission.” Your defense team can use this to prove your “attempt” didn’t go far enough to warrant a guilty verdict under article 80.
  • Article 80 holds Service Members accountable for their attempted crimes by subjecting them to the maximum sentencing as defined by the original criminal offense. But an aggressive military defense attorney can defend against those charges dramatically throughout the trial based on how far the alleged attempt at a crime was made.
  • In addition to the prosecution being required to show that you took some substantial step towards the commission of the crime, the prosecution must also show that you had the mens rea – intent – to commit the underlying crime. A defense strategy could be to show that you did not have the requisite intent to commit the alleged criminal activity.

You have one opportunity to secure a Not Guilty verdict. Not doing so could incur a conviction and sentencing for the underlying crime that never even occurred.

Military Defense Attorneys with Experience Fighting Back Against Article 80 Charges

Bilecki & Tipon has been defending service members from attempt crimes since our inception. Our team of military defense attorneys possesses some of the most skilled legal courtroom advocacy skills in the business.

Bilecki & Tipon will help you fight back against charges under Article 80: Attempts

Frequently Asked Questions About Article 80

Are There Limits to Sentencing Under Article 80?

Yes. But they are relatively limited:

  • Under no circumstances will a Service Member be sentenced to death if they are convicted of Article 80: Attempts, even if the maximum sentencing of the original crime calls for execution.
  • With a single exception (attempted murder) no Article 80 offense will incur a punishment that exceeds 20 years of confinement.

Did I Take The Crime Far Enough to Warrant an Article 80 Offense?

That will depend on the circumstances of your particular case. Article 80 reads that a crime must go beyond “mere preparation and tending.” In other words, you cannot be convicted of an Article 80 offense simply by arranging or plotting a crime. There must be a substantial step towards the commission of the offense before you can be convicted of violating Article 80 of the UCMJ.


  • A service member keeps a journal describing a plan to sell spice at Kadena Air Force Base. If a Commanding Officer finds that journal, that service member should not be charged under Article 80 because he or she never acted out his or her intentions and took no substantial step towards the commission of the offense.
  • You are chatting with someone online who you met on Craigslist who claims to be a 14-year-old girl. Both of you discuss meeting in person at her house to have sex. She asks you to buy her some gummy bears and bring condoms. You go to the store, buy a big bag of your favorite gummy bears and a box of condoms. After leaving the store, you text her and tell her that you bought the “supplies” and are headed to her house to have sex with her. You ask her if her mom is home – she says no. You drive to the house, knock on the door expecting to find a 14-year-old girl, but instead it’s an undercover NCIS agent running a sting operation. In this case, you would likely be charged with attempted sexual assault of a child.

What Is Factual Impossibility?

Factual impossibility is an element of Article 80 which states that a Service Member may still be considered guilty under the article despite circumstances unknown to the service member that renders that crime impossible to complete.

For instance, a Service Member intends to blow up an arms depot and rigs it with explosives, not knowing that those explosives are duds. Despite the crime being impossible to commit, he still showed enough intent to be charged under Article 80, UCMJ.

What Our Clients Are Saying About Us

  • Bilecki & Tipon, LLLC His knowledge and experience were evident during the Article 32 where he seemed to sort of take control of the court room.
  • Bilecki & Tipon, LLLC This was the best investment I have ever made in my life. Again I am forever in debt to this firm.
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  • Bilecki & Tipon, LLLC Mr. Bilecki and his team are extremely aggressive, thorough, and know what they are doing. They saved my life.
  • Bilecki & Tipon, LLLC Do not go into the courtroom by yourself. Go in with a confident hard charging legal firm like Bilecki & Tipon.
  • Bilecki & Tipon, LLLC Mr. Bilecki and his associates are amazingly qualified and skilled in handling UCMJ cases.
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