Article 115 Communicating a Threat Defense

The Words Matter. So Does the Context.

An argument at home. A late-night text. A comment repeated to the chain of command. An allegation of communicating a threat under Article 115, UCMJ, can put your career, freedom, and military benefits at risk.

But an accusation does not establish a crime. The government must prove every element beyond a reasonable doubt—including that the communication would be understood as a threat and that it was wrongful.

The full conversation matters. So do the circumstances and your state of mind.

Cave & Freeburg represents service members accused of communicating threats in military investigations and courts-martial worldwide.

Talk to a military defense lawyer about your case.

What Article 115 Prohibits

Article 115 covers three types of offenses:

• Communicating a threat: Wrongfully communicating a threat to injure another person, their property, or their reputation.
• Threatening to use explosives or other dangerous materials: Wrongfully communicating a threat involving explosives, weapons of mass destruction, biological or chemical agents, or hazardous materials.
• Communicating a false threat involving those materials: Maliciously communicating information about such a threat while knowing the information is false. This includes bomb hoaxes.

Before January 1, 2019, communicating a threat was prosecuted under Article 134. Cases involving older conduct may still fall under that provision, which requires additional proof that the conduct prejudiced good order and discipline or was of a nature to bring discredit upon the armed forces.

What the Government Must Prove

For a general communicating-a-threat charge under Article 115, the prosecution must prove:

1. The accused communicated language expressing a present determination or intent to injure another person, their property, or their reputation, either immediately or in the future.
2. The communication became known to that person or to a third person.
3. The communication was wrongful.

The alleged target does not have to hear the statement directly. A comment made to a coworker or another third party can support a charge.

The meaning of the communication and the speaker’s state of mind are central to the defense.

Two Central Questions in a Communicating a Threat Case

Would a reasonable person understand the communication as a threat?

Courts consider how a reasonable person in the recipient’s position would understand the communication. That requires examining both the words and their context.

Tone, the relationship between the people involved, and what happened before and after the statement can affect its meaning. Context can support an allegation—or undermine it.

The recipient’s reaction matters, but it does not decide the issue. A statement does not become a criminal threat simply because someone reports being afraid. Nor does a lack of visible fear necessarily defeat the charge. United States v. Harrington, 83 M.J. 408 (C.A.A.F. 2023).

Did the service member intend to issue a threat or know it would be understood that way?

The government must also prove that the communication was wrongful. This inquiry concerns the speaker’s own state of mind: whether the speaker intended to issue a threat or knew the communication would be viewed as one.

A statement made in jest or for an innocent or legitimate purpose may not be wrongful. The surrounding evidence matters; simply describing a statement afterward as “a joke” does not resolve the question.

The government does not have to prove that the speaker intended to carry out the threatened harm. “I never would have done it” does not, by itself, defeat a threat charge if it was intended to be a threat. 

Free Speech and Threat Allegations

The First Amendment also places limits on threat prosecutions. In Counterman v. Colorado, the Supreme Court held that it is not enough to show that a reasonable person would find a statement threatening. At a minimum, the government must prove that the speaker consciously disregarded a substantial risk that the communication would be viewed as threatening violence. Counterman v. Colorado, 600 U.S. 66 (2023).

Article 115 has its own requirements for proving the speaker’s state of mind. Counterman does not replace those requirements with a lower standard. It provides an additional basis for examining whether the prosecution’s theory and the judge’s instructions adequately protect speech.

Depending on the allegations, those issues may support a defense motion before trial or a challenge to the instructions used to decide guilt.

For someone facing a threat allegation, the practical point is straightforward: how another person interpreted your words is only part of what the government must prove.

What If the Statement Was Conditional?

Many alleged threats begin with a condition: “If you come back here…” or “If you tell anyone…”

A condition does not automatically prevent a statement from being a threat. The circumstances matter, including whether there was a reasonable possibility that the condition would occur.

A condition that could not realistically happen may undermine the allegation. But a speaker cannot necessarily avoid responsibility by attaching a condition to a threat—for example, demanding that someone remain silent.

The defense must examine the entire statement, the condition, and the circumstances in which it was made.

Common Situations Behind Article 115 Charges

Threat allegations can arise from:

• Domestic disputes. Arguments with a spouse or partner, including during separation or custody disputes. Threat allegations may accompany charges of domestic violence, stalking, or violating a military protective order.
• Texts and social media. Messages sent in anger, posts shared without context, or screenshots that omit part of the conversation.
• Workplace comments. Statements about a supervisor or chain of command reported by a coworker.
• Dark humor or exaggeration. Comments that take on a different meaning when repeated to command or investigators.
• Statements during counseling or spiritual advice. Communications with mental health providers or chaplains may raise distinct privilege issues under Military Rules of Evidence 513 and 503.
• Bomb threats and hoaxes. Allegations involving explosives or other dangerous materials, which carry higher maximum punishments.

No category decides the outcome. An angry statement is not automatically a criminal threat, and calling a statement “venting” does not automatically make it lawful.

When Domestic Violence or Stalking Allegations Accompany a Threat Charge

Article 115 is not itself a covered offense assigned to special trial counsel. Domestic violence under Article 128b and stalking under Article 130 are covered offenses and charges for those offenses are often accompanied by Article 115 charges.

When special trial counsel determines that an alleged offense is covered, they can also exercise authority over related offenses and other reported offenses by the same accused. A threat allegation accompanying a domestic violence or stalking allegation may therefore fall under the Office of Special Trial Counsel, commonly called OSTC.

That affects who makes key prosecution decisions. Defense counsel should determine early which office has authority over the allegations and address the threat charge as part of the broader case.

Learn more about military domestic violence defense.

Can Prosecutors Use Other Allegations Against You?

Prosecutors may seek to introduce other alleged incidents to help prove that a charged statement was wrongful. That evidence is subject to rules limiting its use.

In United States v. Greene-Watson, the CAAF upheld the admission of evidence about a domestic incident that occurred 17 months after the charged threat. The evidence supported the prosecution’s argument that the conduct reflected a common plan to control the spouse and discourage reporting, making it more likely that the threat was serious. Separate opinions raised concerns about the breadth of the common-plan theory. United States v. Greene-Watson, No. 24-0096/AF (C.A.A.F. Mar. 11, 2025).

That does not mean every other allegation is admissible. The defense should examine why the government wants to introduce it, whether it actually proves a disputed issue, and whether the risk of unfair prejudice outweighs its value under the applicable rule.

These issues can require motions before trial and careful objections to preserve them for appeal.

How Cave & Freeburg Defends Article 115 Charges

A defense begins with what was actually communicated, how it was understood, and what the government can prove. Depending on the allegations, we examine:

• The complete conversation. Full message threads, recordings, and witness accounts can reveal context missing from a screenshot or investigative summary.
• The speaker’s intent. Evidence of humor, exaggeration, or a legitimate purpose may undermine the government’s claim that the communication was wrongful.
• The recipient’s perspective. What the recipient knew about the speaker, their relationship, and the circumstances can affect how a reasonable person would understand the words.
• Conditional language. We examine the condition and whether it could realistically occur.
• Credibility and corroboration. We compare accounts with contemporaneous messages, recordings, and other evidence, and investigate inconsistencies or potential bias.
• Digital evidence. We examine whether messages are authentic, complete, and accurately attributed to the accused.
• Other alleged misconduct. We challenge improper attempts to use other incidents to suggest that the accused must have committed the charged offense.
• Legal motions and trial instructions. We examine whether the government is applying the correct legal standard and whether the instructions require proof of every element.

When an Article 32 preliminary hearing is required, it can also provide an early opportunity to challenge whether the evidence supports the charges.

Early representation helps identify evidence to preserve, issues to investigate, and legal challenges to raise before trial.

Potential Punishment

At a general court-martial, the maximum authorized punishments include:

These are maximums, not predictions of the sentence in a particular case. The available punishment also depends on the type of court-martial, the accused’s status, applicable sentencing rules, and any plea agreement. Officers may face dismissal rather than an enlisted punitive discharge.

An allegation can also lead to nonjudicial punishment or administrative action. A conviction may affect a security clearance, continued military service, retirement, and civilian employment.

Results in Cases Involving Threat Allegations

Communicating-a-threat allegations may be one part of a larger case. Our results include:

• Army Colonel — Fort Belvoir, Virginia. Accused of communicating death threats and strangulation involving his wife and son. Charges were dismissed at the Article 32 stage, and the client was allowed to retire.
• Marine Major — Quantico, Virginia. Accused of strangulation and communicating threats. Charges were dismissed, and retirement was preserved.

These summaries describe the broader case outcomes. They do not suggest that the threat allegation was the only or principal charge.

Every case is different. Prior results do not guarantee a similar outcome.

Why Service Members Choose Cave & Freeburg

Cave & Freeburg’s practice is limited to military justice. Our lawyers bring more than 65 years of combined experience to military investigations, courts-martial, administrative proceedings, and appeals.

We represent service members across the armed forces and travel to installations worldwide. Our work includes both trial defense and appeals, allowing us to consider how decisions made during an investigation or trial may affect the case later.

Meet our lawyers or learn about our military appellate defense practice.

Speak With a Military Defense Lawyer

If military investigators want to question you about a threat allegation, get legal advice before answering questions. You have the right to remain silent when questioned as a suspect.

Preserve the complete messages, recordings, and other evidence. Do not delete or alter material because you believe it looks bad; besides being potentially obstruction of justice, the context in the messages may seem unhelpful at first but may matter to your defense.

Contact Cave & Freeburg for a free, confidential consultation.

Frequently Asked Questions

Can I be convicted if I never meant to hurt anyone?

Yes. The government does not have to prove that you intended to carry out the threatened harm. For a general Article 115 threat charge, it must prove that you intended to issue a threat or knew the communication would be viewed as one, along with the other elements.

What if the person was not actually scared?

The person’s reaction is relevant, but actual fear is not required. Courts consider how a reasonable person in the recipient’s position would understand the communication, together with the other elements.

Is “I was joking” a defense?

It can be. A statement genuinely made in jest may not be wrongful. But calling it a joke afterward does not decide the issue. The words, tone, setting, and surrounding evidence matter.

Can a text message or social media post be a threat?

Yes. Texts, direct messages, and social media posts can support a threat charge. The complete conversation and evidence showing who sent or posted the statement may be important to the defense.

Does it matter if the threat was conditional?

Yes, but a condition does not automatically defeat the charge. The defense must examine the wording, the circumstances, and whether the condition could realistically occur.

Will the Office of Special Trial Counsel handle my case?

Article 115 is not itself a covered offense. Special trial counsel may nevertheless exercise authority over a threat charge when it also has authority over a covered offense, such as domestic violence or stalking.

What is the maximum punishment?

At a general court-martial, a general threat carries up to 3 years of confinement. Threats or false threats involving explosives, weapons of mass destruction, biological or chemical agents, or hazardous materials carry up to 10 years. A punitive discharge or dismissal and forfeiture of pay and allowances may also be authorized.

Should I talk to investigators?

Speak with a defense lawyer before answering questions about the allegation. You have the right to remain silent when questioned as a suspect. Preserve relevant evidence and discuss it with your lawyer.

By Philip Cave and Nathan Freeburg at www.court-martial.com. (Last reviewed October 13, 2026.)