Q. If a service member threatens to report my theft of military equipment, can I threaten him back by saying I'll report his drug use?

A. One person's threat to report criminal activity does not give the threatened service member the right to respond in kind. "As a general rule, the reason that one has for threatening another … is not a defense," the U.S. Court of Military Appeals said in U.S. v. Gerald L. Schmidt (1966). Depending on the service members' intent for making such threats, one or the other could end up committing extortion in violation of Article 127 of the Uniform Code of Military Justice.

Service members commit extortion when they communicate threats "with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity." It is not enough "to make a person do an act against that person's will," the Manual for Courts-Martial notes. If a service member responds to a threat to accuse with a similar threat for the purpose of silencing the accuser, then such conduct could amount to extortion.

In U.S. v. Tristan K. Whitfield (2015), the appellant threatened to report a private's adulterous relationship with him after the private threatened to report appellant for breaking a laptop. The Army Court of Criminal Appeals said the "threat to disclose true information coupled with the proscribed motive of gaining an advantage by inhibiting [the private] from revealing his own misconduct may have supported an extortion conviction." However, the court-martial panel acquitted the appellant of extortion and instead convicted him of communication of a threat in violation of Article 134, which the government offered as an "alternative, albeit flawed, theory."

It is important to note that communication of a threat can be a lesser-included-offense of extortion. However, the Article 134 offense requires that the communication be wrongful and prejudicial to good order and discipline or service discrediting. In Whitfield, the court found that the appellant's threat "to truthfully reveal … misconduct to the chain of command falls short of the requirement that appellant's communication be "wrongful." Consequently, the court set aside the findings of guilt for the communicating-a-threat charge and sentence.

Service members charged with extortion or communicating a threat should immediately consult with an experienced military law attorney. Depending on the circumstances, an attorney can show the service member did not communicate a threat with the intent to obtain anything of value or any acquittance, advantage, or immunity, or show the communication was not wrongful.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC. Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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