UCMJ Article 132: Retaliation

Article 132 of the MCM states any service member may be subject to prosecution if they, with the intent to retaliate against any person for reporting or planning to report a criminal offense or making or planning to make a protected communication, or with the intent to discourage any person from reporting a criminal offense or making or planning to make a secure communication wrongfully takes or threatens to take an adverse personnel action against any person; or wrongfully withholds or threatens to withhold a favorable personnel action concerning any person.

For Article 132, the term “protected communication” refers to a lawful communication to a member of Congress or an Inspector General as well as 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:

1. a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination; or

2. gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

The term “covered individual or organization” refers to any recipient of a communication specified in section 1034 (b)(1)(B) of the MCM. “Unlawful discrimination” is any discrimination based on race, color, religion, sex, or national origin.

To be convicted of a violation of Article 132 for Retaliation, the prosecution must demonstrate that:

1. 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 concerning any person; and

2. 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.

Conviction of an Article 132 violation for Discouraging a Report of Criminal Offense or Protected Communication requires the prosecution to demonstrate that:

1. 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 concerning any person; and

2. at the time of the action, the accused intended to discourage anyone from reporting a criminal offense or making a protected communication.

Understanding Article 132 (Retaliation) of the UCMJ

Article 132 focuses upon the abuse of an otherwise lawful military authority to retaliate against any person for reporting, or plan to report, a criminal offense or for making, or planning to make, a protected communication or to discourage any person from reporting a criminal offense or for making or planning to make a protected communication. The offense prohibits personnel actions with the specific intent to retaliate against any person for reporting, or planning to report, a criminal offense or for making, or planning to make, a protected communication or to discourage any person from reporting a criminal offense or for making or planning to make a protected communication. The offense 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 that takes such action wrongfully and with specific intent.

Personnel action refers to any action taken on a service member that affects, or has the potential to act, that service member’s 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, and any other personnel actions as defined by law or regulation.

An action is taken with the intent to retaliate when the personnel action taken or withheld, or threatened to be taken or withheld, is done for reprisal, retribution, or revenge for reporting or planning to report a criminal offense or for making or planning to make a protected communication.

This offense requires that the accused had the intent to retaliate, but proof that the accused intended to take an adverse personnel action or to withhold a favorable personnel action is not required. A declaration made under circumstances that reveal it to be in jest or for an innocent or legitimate purpose or which contradicts the expressed intent to commit the act does not constitute this offense. Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving a favorable or adverse personnel action.

Maximum Possible Punishment for Violations of Article 132

Service members convicted of violating Article 132 for Retaliation face the maximum possible punishment of a dishonorable discharge, forfeiture of all pay and benefits, and confinement for three years.

How do you defend against Article 132 Retaliation charges?

When you are facing the combined resources of the military as well as the current cultural climate, you need to be prepared to defend your career and your freedom. Crisp and Associates, LLC has a team of experienced trial attorneys with over 75 years of combined experience who have won these cases. This team includes the firm’s founder, Jonathan Crisp, a highly respected and sought-after attorney, speaker, and lecturer who has served in the U.S. Army Judge Advocate General’s Corps (JAG) since 1998 and entered private practice in 2007.

If you, or someone you know, is facing Article 132 charges for Retaliation, you need to speak with a Military defense attorney immediately. We understand what is at risk, and we know how to protect your career, your freedom, and your future. Please call Crisp and Associates Military at 888-258-1653 for a free consultation.