Article 115 | Communicating Threats

Accused of an Article 115 Charge for Communicating a Threat?  Don’t go it alone.  Military Law Center can help.

The Manual for Courts-Martial, under Article 115 (10 U.S.C. 915), prohibits any service member from wrongfully communicating a threat to injury a person, property, or reputation of another.  The government has three ways to prove a service member communicated a threat.

Communicating threats under Article 115 can be proven by the government at court-martial or administrative hearing by showing the service member (1) communicated a threat generally, (2) communicated a threat to use explosives, or (3) communicated a false threat concerning the use of explosives.

Communicating Threats Generally:

1. That the accused communicated certain language expressing a present determination or intent to injure the person, property, or reputation of another person, presently or in the future;
2. That the communication was made known to that person or to a third person; and
3. That the communication was wrongful.

Threat to Use Explosives:

1. That the accused communicated certain language;
2. That the information communicated amounted to a threat;
3. That the harm threatened was to be done by means of an explosive; weapon of mass destruction; biological or chemical agent, substance, or weapon; or hazardous material; and
4. That the communication was wrongful.

False Threats Concerning Use of Explosives:

1. That the accused communicated or conveyed certain information;
2. That the information communicated or conveyed concerned an attempt being made or to be made by means of an explosive; weapon of mass destruction; biological or chemical agent, substance, or weapon; or hazardous material, to unlawfully kill, injury, or intimidated a person or to unlawfully damage or destroy certain property;
3. That the information communicated or conveyed by the accused was false and that the accused then knew it to be false; and
4. That the communication of the information by the accused was malicious.

The terms found within the elements above in Article 115 have specific definitions.  The following definitions apply:

• Threat:
  A “threat” means an expressed present determination or intent to kill, injure, or intimidate a person or to damage or destroy certain property presently or in the future.  The communication must be one that a reasonable person would understand as expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future.  Proof that the accused actually intended to kill, injure, intimate, damage or destroy is not required.

• Wrongful:
  A communication must be wrongful in order to constitute this offense.  The wrongfulness of the communication relates to the accused’s subjective intent.  For purposes of this paragraph, the mental state requirement is satisfied if the accused transmitted the communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.  A statement made under circumstances that reveal it to be in just or for an innocent or legitimate purpose that contradicts the expressed intent to commit the act is not wrongful.  Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving a threat.
• Explosive:
  “Explosive” means gunpowder, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device, and any other explosive compound, mixture, or similar material.
• Weapon of Mass Destruction:
  A “weapon of mass destruction” means any device, explosive or otherwise, that is intended, or has the capability, to cause death or serious bodily injury to a significant number of people through the release, dissemination, or impact of: toxic or poisonous chemicals, or their precursors; a disease organism; or radiation or radioactivity. 
• Biological Agent:
  The term “biological agent” means any microorganism (including bacterial, viruses, fungi, rickettsiac, or protozoa), pathogen, or infectious substance, and any naturally occurring, bioengineered, or synthesized component of any such microorganism, pathogen, or infections substance, whatever its origin or method of production, that is capable of causing:
  • Death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism;
  • Deterioration of food, water, equipment, supplies, or materials of any kind; or
  • Deleterious alteration of the environment.
• Chemical Agent, Substance, or Weapon: 
  A “chemical agent, substance, or weapon” refers to a toxic chemical and its precursors or a munition or device, specifically designed to cause death or other harm through toxic properties of those chemicals that would be released as a result of the employment of such munition or device, and any equipment specifically designed for use directly in connection with the employment of such munitions or devices.
• Hazardous Material:
  A substance or material (including explosive, radioactive material, etiologic agent, flammable or combustible liquid or solid, poison, oxidizing or corrosive material, and compressed gas, or mixture thereof) or a group or class of material designated as hazardous by the Secretary of Transportation.
• Malicious:
  A communication is malicious if the accused believed that the information would probably interfere with the peaceful use of the building, vehicle, aircraft, or other property concerned, or would cause fear or concern to one or more persons.

An Article 115 charge is serious, can stop a military career, and even warrant brig time.  But there are defenses available to fight the accusation:

• Alibi:
  “Alibi” means that the accused could not have committed the offense charged because the accused was at another place when the offense occurred.  As this defense allows the accused to show he or she was not the person who made the threat at a certain time or place, the government will be unable to meet its burden of proof.  The burden remains on the prosecution to demonstrate the accused’s guilt.
• Jest or Joke:
  To be a wrongful communication, the accused must mean what they say.  If the statement was made as a joke, evidence to support this will establish a defense to communicating a threat.  Although some statements may be in poor taste, offensive, and uncomfortable to listen to, a statement made in jest is not a criminal act under Article 115, UCMJ.

The maximum punishment for Article 115 is a dishonorable discharge, 10 years confinement, total forfeitures of pay and allowances, reduction in rank to E-1, and other lawful punishments.

The potential penalties for communicating threats in the military vary on the seriousness of the offense. A court-martial can impose a range of punishments, including:

• Confinement: The accused may face imprisonment for a specific period determined by the court-martial.
• Reduction in rank: This could involve a demotion to a lower enlisted grade or officer rank.
• Forfeiture of pay and allowances: The accused may lose a portion of their military pay and benefits.
• Bad-conduct discharge: This is a less severe form of separation with a negative characterization, potentially impacting future employment opportunities and veteran benefits.
• Reprimand or admonition: These are non-judicial punishments involving official censure of the accused’s actions.

The specific maximum punishment for an Article 115 offense will depend on how the government presents its case and how many separate specifications the accused is facing.  Our attorneys at the Military Law Center can help provide a maximum punishment for your case during a free consultation.

The military has the option of charging an accused with communicating threats at a court martial or choosing to use the administrative separation board process.  All military services prohibit communicating a threat or communicating threats using explosives.  An ADSEP Board for Article 115 offenses is a more challenging environment for an accused to win because the burden of proof is far lower than that required at a court martial.  

Despite the easier burden for the government, attorneys at the Military Law Center have successfully defended service members facing allegations of communicating threats.  By strategically planning a defense, preparing early, and critically analyzing the evidence, our ADSEP Board lawyers can help get your military career back on track.

When a service member is arrested for communicating a threat or becomes “titled” in a law enforcement investigation, their security clearance may be in jeopardy.  Service members may receive a Request for Supplemental Information (RSI) from the Defense Counterintelligence and Security Agency (DSCA).  DSCA is required to review a service member’s eligibility for an active security clearance when they are charged with or convicted of any criminal offenses (excluding traffic violations that do not involve alcohol or drugs, resulting in fines less than $300) since the last investigation pursuant to DoDM 5200.02. 

As any response to DSCA may be used against a service member later at an ADSEP Board or court martial, it is paramount to consult with a qualified military law attorney with experience with security clearance issues.  Effective responses to a request for supplemental information will use the 2017 National Security Adjudicative Guidelines, Security Executive Agent Directive 4.

An Article 115 arrest and conviction can have devastating consequences beyond the courtroom. It can damage your reputation within the military, stall your career progression, and potentially hinder future job opportunities in the civilian sector.  

Additionally, service members may be precluded from ownership, receipt, or transport of any firearm that has been transported in interstate or foreign commerce under 18 U.S.C. § 922(g)(6) when the accused separates from the military with a dishonorable discharge or is punished with more than one year of confinement.

Facing an Article 115 accusation can be frustrating, stressful, and sometimes an embarrassing experience. At Military Law Center, our attorneys understand the challenges you’re facing, and we’re here to help. Here’s what sets us apart:

• Experienced Military Defense Lawyers:
  Our team is comprised of former military judge advocates (JAGs) with a deep understanding of military law and the UCMJ. We’ve successfully defended countless service members facing all kinds of allegations, and we know how to litigate the complexities of military justice from start to finish.
• Personalized Attention:
  We care for every client as an individual. We’ll take the time to understand your specific situation and develop a personalized defense strategy, to include rehabilitation options, designed to achieve the best possible outcome.
• Aggressively Protecting Your Rights:
  We’re committed to fighting for your rights and ensuring you receive fair treatment throughout the legal process. We’ll explore all available defenses and work tirelessly to protect your career and reputation.
• Clear Communication:
  We understand legal terms can be confusing. We’ll keep you informed about the progress of your case and explain everything in clear, understandable terms.
• Free Consultation:
  We offer a free consultation to discuss your situation and answer any questions you may have. This allows you to make informed decisions about your defense strategy.

Don’t Face Article 115 Allegations Alone. Military Law Center Can Help.

An Article 115 charge can take away your gun rights and security clearance, stall your military career, and damage your personal and professional reputation. But you don’t have to fight by yourself. Military Law Center has a proven track record of successfully defending service members facing the most serious charges and getting them the rehabilitative help they need. Our experienced military law attorneys understand the military justice system and will work tirelessly to protect your rights and achieve the best possible outcome for your case.

Contact Military Law Center today for a free consultation.
We’ll stand by your side and fight for you.

Call Us Today – (760) 536-9038