Part IV · Punitive Articles

Article 132. Retaliation · MCM ¶ 89

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute.
(a) IN GENERAL.—Any person subject to this chapter who, 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 protected communication—
(1) wrongfully takes or threatens to take an adverse personnel action against any person; or
(2) wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person; shall be punished as a court-martial may direct.
(b) DEFINITIONS.—In this section:
(1) The term “protected communication” means the following:
(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, any of the following:
(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.
(2) The term “Inspector General” has the meaning given that term in section 1034(j) of this title.
(3) The term “covered individual or organization” means any recipient of a communication specified in clauses (i) through (v) of section 1034(b)(1)(B) of this title.
(4) The term “unlawful discrimination” means discrimination on the basis of race, color, religion, sex, or national origin.
(b) Elements.
(1) Retaliation
(a) That the accused wrongfully
(i) took or threatened to take an adverse personnel action against any person, or
(ii) withheld or threatened to withhold a favorable personnel action with respect to any person; and
(b) 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.
(2) Discouraging a report of criminal offense or protected communication.
(a) That the accused wrongfully
(i) took or threatened to take an adverse personnel action against any person, or
(ii) withheld or threatened to withhold a favorable personnel action with respect to any person; and
(b) That, at the time of the action, the accused intended to discourage any person from reporting a criminal offense or making a protected communication.
(c) Explanation.
(1) In general. This offense focuses upon the abuse of otherwise lawful military authority for the purpose of retaliating 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 prohibits personnel actions, either favorable or adverse, taken or withheld, or threatened to be taken or withheld, 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 who takes such action wrongfully and with the requisite specific intent. This offense does not prohibit the lawful and appropriate exercise of command authority to discipline or reward Servicemembers.
(2) Personnel action. For purposes of this offense, “personnel action” means—
(a) any action taken on a Servicemember that affects, or has the potential to affect, that Servicemember’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, such as 5 U.S.C. § 2302 and DoD Directive 7050.06 (17 April 2015); or,
(b) any action taken on a civilian employee that affects, or has the potential to affect, that person’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; discharge; and any other personnel actions as defined by law or regulation such as 5 U.S.C. § 2302.
(3) Intent to retaliate. 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 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.
(4) Threatens to take or withhold. This offense requires that the accused had the intent to retaliate, but proof that the accused actually intended to take an adverse personnel action, or to withhold a favorable personnel action, is not required. A declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose, or which contradict 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.
(5) Criminal offense. Criminal offense for purposes of this offense includes violations of the UCMJ, the United States Code, or state law.
(6) Wrongful. Taking or threatening to take adverse personnel action, or withholding or threatening to withhold favorable personnel action, is wrongful when used for the purpose of reprisal, rather than for purposes of lawful personnel administration.
(7) Other retaliatory actions. This offense does not prohibit the Secretary of Defense and Secretaries of the Military Services from proscribing other types or categories of prohibited retaliatory actions by regulation, which may be punished as violations of Article 92.
(d) Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(e) Sample specification s.
(1) Retaliation In that __________ (personal jurisdiction data), did, (at/on board—location) (subject matter jurisdiction data, if required), on or about _____ 20 __, with intent to retaliate against _________________for [(reporting) (planning to report) a criminal offense] [(making) (planning to make) a protected communication], wrongfully [(took) (threatened to take) an adverse personnel action against _______________ to wit:_______________][(withheld) (threatened to withhold) a favorable personnel action with respect to _____________ to wit:___________].
(2) Discouraging a report of criminal offense or protected communication In that __________ (personal jurisdiction data), did, (at/on board—location) (subject matter jurisdiction data, if required), on or about _____ 20 __, with intent to discourage ___________________ from (reporting a criminal offense) (making a protected communication), wrongfully [(took) (threatened to take) an adverse personnel action against _______________, to wit :_______________][(withheld) (threatened to withhold) a favorable personnel action with respect to _____________, to wit:___________].
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. 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.
Maximum punishment

DD, TF, 3 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did (at/on board—location), on or about __________, with intent to retaliate against __________________ for [(reporting) (planning to report) a criminal offense] [(making) (planning to make) a protected communication], wrongfully [(took) (threatened to take) an adverse personnel action against _______________ to wit: ____________] [(withheld) (threatened to withhold) a favorable personnel action with respect to __________ to wit: ____________].

Elements

(1) That (state the time and place alleged), the accused wrongfully [(took) (threatened to take) an adverse personnel action against ________, to wit: ____________] [(withheld) (threatened to withhold) a favorable personnel action with respect to _________, to wit: _____________]; and

(2) That, at the time of the action, the accused intended to retaliate against ______________ for (reporting or planning to report a criminal offense) (making or planning to make a protected communication).

Definitions & other instructions
NOTE 2. As examples of “laws or regulations” “defining personnel actions,” the MCM’s explanation of this offense cites to 5 USC 2302 and DoD Directive 7050.06 (17 April 2015).

(For service members, “personnel action” means any action taken on a servicemember that affects, or has the potential to affect, that servicemember’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 evaluations, and any other personnel actions as defined by law or regulation.)

(For civilian personnel, “personnel action” means any action taken on a civilian employee that affects, or has the potential to affect, that person’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; discharge; 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 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.

“Wrongfully” means an act done without legal justification or excuse. Taking or threatening to take adverse personnel action, or withholding or threatening to withhold favorable personnel action, is wrongful when used for the purpose of reprisal rather than for the purpose of lawful personnel administration.

(“Criminal offense” means violations of criminal law under the Uniform Code of Military Justice, the United States Code, or state law.)

NOTE 3. Protected communication. If a “protected communication” is alleged, the judge must craft an appropriate instruction using the definitions below.

“Protected communication” means:

A lawful communication to a Member of Congress or an Inspector General, or

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.

(“Inspector general” means: the Inspector General of the Department of Defense; the Inspector General of the Department of Homeland Security, in the case of a member of the Coast Guard when the Coast Guard is not operating as a service in the Navy, or; any officer of the armed forces or employee of the Department of Defense who is assigned or detailed to serve as an Inspector General at any level in the Department of Defense.)

(“Covered individual or organization” means: a Member of Congress; an Inspector General; a member of a Department of Defense audit, inspection, investigation, or law enforcement organization; any person or organization in the chain of command, or; a court-martial proceeding.)

(“Unlawful discrimination” means discrimination on the basis of race, color, religion, sex, or national origin.)

NOTE 4. Threatens to take or withhold. When the accused is charged with threatening to take an adverse personnel action or withhold a favorable personnel action, provide the instruction below.

Proof that the accused actually intended to (take an adverse personnel action) (withhold a favorable personnel action) is not required. However, the accused must have had the “intent to retaliate” against ______________ for (reporting or planning to report a criminal offense) (making or planning to make a protected communication) when the threat was made. A declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose, or which contradict the expressed intent to commit the act, does not constitute this offense.

Source: Instruction 3a-89-1 · view original on jagcnet.army.mil

NOTE 1. 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.
Maximum punishment

DD, TF, 3 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did (at/on board—location), on or about __________, with intent to discourage __________________ from (reporting a criminal offense) (making a protected communication), wrongfully [(took) (threatened to take) an adverse personnel action against _______________, to wit: ____________] [(withheld) (threatened to withhold) a favorable personnel action with respect to________________, to wit: ____________].

Elements

(1) That (state the time and place alleged), the accused wrongfully [(took) (threatened to take) an adverse personnel action against ________, to wit: ____________] [(withheld) (threatened to withhold) a favorable personnel action with respect to _________, to wit: _____________]; and

(2) That, at the time of the action, the accused intended to discourage ______________ from (reporting a criminal offense) (making a protected communication).

Definitions & other instructions
NOTE 2. As examples of “laws or regulations” “defining personnel actions,” the MCM’s explanation of this offense cites to 5 USC 2302 and DoD Directive 7050.06 (17 April 2015).

(For service members, “personnel action” means any action taken on a servicemember that affects, or has the potential to affect, that servicemember’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 evaluations, and any other personnel actions as defined by law or regulation.)

(For civilian personnel, “personnel action” means any action taken on a civilian employee that affects, or has the potential to affect, that person’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; discharge; and any other personnel actions as defined by law or regulation.)

“Wrongfully” means an act done without legal justification or excuse. Taking or threatening to take adverse personnel action, or withholding or threatening to withhold favorable personnel action, is wrongful when used for the purpose of reprisal rather than for the purpose of lawful personnel administration.

(“Criminal offense” means violations of criminal law under the Uniform Code of Military Justice, the United States Code, or state law.)

NOTE 3. Protected communication. If a “protected communication” is alleged, the judge must craft an appropriate instruction using the definitions below.

“Protected communication” means:

A lawful communication to a Member of Congress or an Inspector General, or

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.

(“Inspector general” means: the Inspector General of the Department of Defense; the Inspector General of the Department of Homeland Security, in the case of a member of the Coast Guard when the Coast Guard is not operating as a service in the Navy, or; any officer of the armed forces or employee of the Department of Defense who is assigned or detailed to serve as an Inspector General at any level in the Department of Defense.)

(“Covered individual or organization” means: a Member of Congress; an Inspector General; a member of a Department of Defense audit, inspection, investigation, or law enforcement organization; any person or organization in the chain of command, or; a court-martial proceeding.)

(“Unlawful discrimination” means discrimination on the basis of race, color, religion, sex, or national origin.)

NOTE 4. Threatens to take or withhold. When the accused is charged with threatening to take an adverse personnel action or withhold a favorable personnel action, provide the instruction below.

Proof that the accused actually intended to (take an adverse personnel action) (withhold a favorable personnel action) is not required. However, the accused must have had the “intent to discourage” ______________ from (reporting a criminal offense) (making a protected communication) when the threat was made. A declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose, or which contradict the expressed intent to commit the act, does not constitute this offense.

Source: Instruction 3a-89-2 · view original on jagcnet.army.mil