Retaliation is a natural human desire when someone has hurt you. In the military, however, retaliation is not just morally wrong but constitutes a violation of the UCMJ when it wrongfully, intentionally, and adversely impacts the career of a protected service member. A service member convicted of retaliation can not only lose his or her military career but can receive substantial punishments to include a punitive discharge and years of confinement.
When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA have decades of experience and have defended service members charged with some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.
Background and Intent Behind Article 132, UCMJ
Article 132, UCMJ, criminalizes service members from retaliating against another person for reporting a criminal offense or making a protected communication, or from discouraging any person to report a crime or make a protected communication. Retaliation occurs when a person wrongfully takes or threatens to take adverse personnel action against the other person or wrongfully withholds favorable personnel action, like an award or favorable assignment.
A violation of Article 132, UCMJ, “may be committed by any person subject to the UCMJ with the authority to initiate, forward, recommend, decide, or otherwise act on a favorable or adverse personnel action who takes such action wrongfully and with the requisite specific intent.” Article 132, UCMJ, does not prohibit the lawful and appropriate exercise of command authority to discipline or reward Servicemembers.”
The offense of retaliation has become even more serious in recent years that it is now considered a “covered offense” under the UCMJ and will be reviewed by the Office of Special Trial Counsel (OSTC). Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military prosecutors who handle only serious criminal offenses. The OSTC has the authority to prosecute the following “covered offenses:
- Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
- Article 118, Murder
- Article 119, Manslaughter
- Article 119a, Death or Injury of an Unborn Child*
- Article 120, Rape and Sexual Assault
- Article 120a, Mail, Deposit of Obscene Matter*
- Article 120b, Rape and Sexual Assault of a Child
- Article 120c, Other Sexual Misconduct
- Article 125, Kidnapping
- Article 128b, Domestic Violence
- Article 130, Stalking
- Article 132, Retaliation
- Article 134, Child Pornography
- A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.
The OSTC took effect on 27 December 2023 and now has jurisdiction with respect to covered offenses that occur after that date. When going up against the best prosecutors in the Department of Defense, service members facing court-martial for retaliation need to have the very best legal defense representation.
Retaliation – Threatening or Withholding Personnel Actions
Article 132, UCMJ, prohibits two general categories of misconduct: (1) retaliation; and (2) discouraging a service member from reporting a criminal offense or making a protected communication.
To be guilty of retaliation, the government must prove two elements:
- That the accused wrongfully took or threatened to take an adverse personnel actionagainst any person, or withheld or threatened to withhold a favorable personnel action with respect to any person; and
- That, at the time of the action, the accused intended to retaliate against any person for reporting or planning to report a criminal offense, or for making or planning to make a protected communication.
Let’s break down the important definitions from those elements.
First, in order to be a violation of Article 132, the government must prove that an accused took adverse personnel action against or withheld favorable personnel action from another person. Under the offense, “personnel action” simply refers to any action taken on a service member that affects, or has the potential to affect, their “current position or career, including promotion; disciplinary or other corrective action; transfer or reassignment; performance evaluations; decisions concerning pay, benefits, awards, or training; relief and removal; separation; discharge; referral for mental health evaluations;” among other actions.
Next—and this is extremely important—there must be evidence that the accused intentionally retaliated against the other person due to their decision to report a crime or make a protected communication. Under Article 132, a personnel action is taken with the “intent to retaliate” when it is done “for the purpose of reprisal, retribution, or revenge for reporting or planning to report a criminal offense or for making or planning to make a protected communication.” There are often lawful reasons why personnel actions are taken or withheld other than retaliation.
Discouraging a Report of Criminal Offense or Protected Communication
Article 132 also prohibits a service member from discouraging another person to report a criminal offense or making a protected communication. The difference between this offense and retaliation is timing. Before a report or protected communication is made, it’s a crime to discourage that communication. After a report or protected communication is made, it’s a crime to retaliate against the service member who submitted the complaint.
To be guilty of discouraging a report of criminal offense or protected communication, the government must prove:
- That the accused wrongfully took or threatened to take an adverse personnel action against any person, or withheld or threatened to withhold a favorable personnel action with respect to any person; and
- That, at the time of the action, the accused intended to discourage any person from reporting a criminal offense or making a protected communication.
Many of the same definitions as above apply to this offense. The key difference is that, under this offense, the accused was trying to discourage a person from reporting a crime and making a protected communication.
What is a protected communication?
Under Article 138, UCMJ, a protected communication can mean:
(A) A lawful communication to a Member of Congress or an Inspector General.
(B) A communication to a covered individual or organization in which a member of the armed forces complains of, or discloses information that the member reasonably believes constitutes evidence of:
(i) A violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination;
(ii) Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Defenses to Allegations of Reprisal
Defense under Article 132 can be highly fact specific. However, it is always a defense to a charge of retaliation for an accused to show that the personnel action was a lawful and appropriate exercise of command authority to discipline or reward a service member. After all, just because someone didn’t receive an award or is facing adverse action does not mean there is a violation of the UCMJ.
Evidence of a lack of intent to retaliate or discourage can also be a defense as specific intent is a required element of either charge. A skillful defense attorney can identify deficiencies in the government’s case and ensure that all relevant facts are brought to light.
Maximum Punishment
The maximum punishment for violating Article 132 is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
Retaliation is considered a Category 2 offense under the Manual for Courts-Martial’s sentencing guidelines and therefore requires a sentence of 1-36 months of confinement for any conviction.
Protect Your Freedom and Military Career
When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, discipline, and court-martial for the most serious offenses under the UCMJ and will ensure that every defense is aggressively pursued on your behalf. Contact us today for a free consultation.