NOTE 1: This instruction only applies to solicitation to commit mutiny, desertion, misbehavior before the enemy, and sedition offenses committed on or after 1 January 2019. For offenses committed before 1 January 2019, see Instructions 3-6-1 and 3-6-2.
NOTE 2: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM. For solicitation offenses, whether it is a criteria or parameter offense is dependent on the underlying offense solicited.
a. MAXIMUM PUNISHMENT:
(1) If offense solicited or advised is committed or attempted: maximum punishment for underlying offense.
(2) If offense solicited or advised is not committed or attempted: DD, TF, 15 years, E-1 or maximum punishment for underlying offense, whichever is less.
b. SAMPLE SPECIFICATIONS:
Soliciting desertion (Article 85) or mutiny (Article 94(a)):
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (a time of war) by (here state the manner and form of solicitation or advice), (solicit) (advise) __________ (and __________) to (desert in violation of Article 85) (mutiny in violation of Article 94(a)) [*and, as a result of such (solicitation) (advice), the offense (solicited) (advised) was, on or about __________, (at/on board—location), (attempted) (committed) by __________ (and __________)]. *Note: This language should be added at the end of the specification if the offense solicited or advised is actually attempted or committed.
Soliciting sedition (Article 94(a)) or misbehavior before or in the presence of the enemy (Article 99:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (a time of war) by (here state the manner and form of solicitation or advice), (solicit) (advise) __________ (and __________) to commit (an act of misbehavior before the enemy in violation of Article 99) (sedition in violation of Article 94(a)) [*and, as a result of such (solicitation) (advice), the offense (solicited) (advised) was, on or about __________, (at/on board—location), committed by __________ (and __________)]. *Note: This language should be added at the end of the specification if the offense solicited or advised is actually attempted or committed.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused solicited or advised (state the name of the person(s) allegedly solicited or advised) to commit (specify the offense allegedly solicited or advised), in violation of Article ____, UCMJ; (and)
(2) That the accused specifically intended that (state the name of person allegedly solicited or advised) commit the offense of (specify the offense allegedly solicited or advised); [and]
NOTE 3: If the offense solicited or advised was actually attempted or committed, add the following element.
[(3)] That the offense (solicited) (advised) was (committed) (attempted) as the proximate result of the solicitation.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
(“Solicit”) (“Advise”) means any statement, oral or written, or any other act or conduct which reasonably may be construed as a serious request or advice to commit the offense named in the specification.
The offense of solicitation is complete when the solicitation is made or advice is given with the specific intent to influence another or others to commit the offense named in the specification. It is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advice.
(It is not necessary that the accused act alone in the solicitation or in the advising; the accused may act through other persons in committing this offense.)
The accused must have intended that (state the name(s) of the person(s) solicited or advised) commit every element of the offense of (desertion) (mutiny) (misbehavior before or in the presence of the enemy) (sedition). The elements of (desertion) (mutiny) (misbehavior before or in the presence of the enemy) (sedition) are as follows: (state the elements of the offense allegedly solicited along with necessary definitions).
NOTE 4: No allegation offense solicited or advised was attempted or committed. If there is no allegation that the offense solicited or advised was attempted or committed, give the following instruction.
Proof that the offense of (desertion) (mutiny) (misbehavior before or in the presence of the enemy) (sedition) was actually attempted or committed is not required.
NOTE 5: Solicited offense was allegedly committed. If the specification alleges that the solicited offense was committed, give the following instruction.
Although I previously told you that it is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advice, in this case the government has alleged that the offense solicited or advised was, in fact, committed. As a result, the government must prove that (state the name(s) of the person(s) allegedly committing the offense) committed the offense of (desertion) (mutiny) (misbehavior before or in the presence of the enemy) (sedition) as the proximate result of the solicitation.
(“Proximate result” means a consequence which proceeds naturally in the ordinary course of things from the cause. It is an ordinary and probable result of a certain act. Something that is a mere possibility is not sufficient to constitute a proximate result.)
To prove that (state the name(s) of the person(s) allegedly committing the offense) committed the offense of (desertion) (mutiny) (misbehavior before or in the presence of the enemy) (sedition), the government must prove that: (list the elements of the offense solicited, ensuring to indicate that the person named in the specification is the person who committed the offense; or the judge may reference the elements previously listed for the solicited offense, so long as it is clear that the person alleged in the specification is the one who committed the offense.)
(If you are not convinced that (state the name(s) of the person(s) allegedly committing the offense) actually committed the offense of (desertion) (mutiny) (misbehavior before or in the presence of the enemy) (sedition) as the proximate result of the solicitation, but you are satisfied that all of the other elements of the offense have been proven, then you may find the accused guilty of the specification by excepting the language that indicates that the offense was actually committed.)
NOTE 6: Solicited offense was allegedly attempted. If the specification alleges that the solicited offense was attempted, give the following instruction.
Although I previously told you that it is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advice, in this case the government has alleged that the offense solicited or advised was, in fact, attempted. As a result, the government must prove that (state the name(s) of the person(s) allegedly committing the offense) attempted to commit the offense of (desertion) (mutiny) (misbehavior before or in the presence of the enemy) (sedition) as the proximate result of the solicitation.
(“Proximate result” means a consequence which proceeds naturally in the ordinary course of things from the cause. It is an ordinary and probable result of a certain act. Something that is a mere possibility is not sufficient to constitute a proximate result.)
To prove that (state the name(s) of the person(s) allegedly attempting the offense) attempted to commit the offense of (desertion) (mutiny) (misbehavior before or in the presence of the enemy) (sedition), the government must prove that: (list the elements of an attempt to commit the solicited offense, using Instruction 3a-4-1, Attempts, as a guide, carefully tailoring to the evidence and consistent with the allegation in the specification.)
(If you are not convinced that (state the name(s) of the person(s) allegedly committing the offense) attempted to commit the offense of (desertion) (mutiny) (misbehavior before or in the presence of the enemy) (sedition) as the proximate result of the solicitation, but you are satisfied that all of the other elements of the offense have been proven, then you may find the accused guilty of the specification by excepting the language that indicates that the offense was attempted.)