UCMJ Article 128: Assault
At Bilecki Law Group, we defend service members from charges of assault as outlined under Article 128 of the UCMJ. With every assault, there are always two sides of the story and we’re ready to fight on your behalf.
What Is Article 128 Of The UCMJ?
Article 128 of the UCMJ governs a range of charges related to assault as committed by service members of the United States Armed Services. In total, there are 14 different charges under Article 128 that could be levied against a service member and each one may come with severe consequences if found guilty.
Now, it should be no surprise that the armed services, which exist to gift violence to our enemies, have such a wide range of charges to govern the misuse of violence. The military will teach you to do some extraordinarily bad things to very bad people, but if you misuse that they will set out to destroy your life.
How often does assault take place in the military? In our estimate, we’d say every day. Some of it sanctioned and overlooked, while other times prosecuted to the fullest degree possible. If you are a service member, you run the risk of being the victim of a random and arbitrary prosecution for behavior your command may have bragged about when they were younger. It’s not right and it’s not justice, but that may be the reality you face right now.
What Types of Assault Can I Be Charged With Under Article 128, UCMJ?
As mentioned earlier, there are 14 different charges that can be brought against you under Article 128. For the sake of clarity, we’re going to be writing only about the more common types of assault on this page while saving aggravated assaults and domestic assault for their own offerings. This will allow you to spend more time learning about your specific charges. For the charges we’ll discuss now, we’ll show you the elements that must be proven to convict as well as the corresponding max punishment.
Simple Assault – For a service member to be found guilty, the prosecution must satisfy the following three elements, with a fourth if an unloaded firearm is involved:
(1) That (state the time and place alleged), the accused (attempted) (offered) to do bodily harm to (state the name of the alleged victim) by (state the manner alleged);
(2) That the (attempt) (offer) was done unlawfully; (and)
(3) That the (attempt) (offer) was done with force or violence; [and]
(4) That the (attempt) (offer) was done with an unloaded firearm.
Note that the UCMJ clarifies that an “assault” is an unlawful attempt, made with force or violence, to do bodily harm to another, whether or not the attempt is consummated.
Maximum Punishment: When committed with an unloaded firearm, dishonorable discharge, total forfeiture of all pay and allowances, 3 years confinement and reduction in rank to E-1.
All other cases come with a 2/3 reduction in pay for 3 months, 3 months confinement, and a reduction in rank to E-1.
Assault Consummated By A Battery – For a service member to be found guilty, the prosecution must satisfy the following three elements:
(1) That (state the time and place alleged), the accused did bodily harm to (state the name of the alleged victim) by (state the manner alleged);
(2) That the bodily harm was done unlawfully; and
(3) That the bodily harm was done with force or violence.
The UCMJ then defines “bodily harm” as an offensive touching of another, however slight.
Maximum Punishment: Bad conduct discharge, total forfeiture of all pay and allowances, 6 months confinement and reduction in rank to E-1.
Assault Upon A Commissioned Officer – For a service member to be found guilty, the prosecution must satisfy the following five elements:
(1) That (state the time and place alleged) the accused (attempted to do) (offered to do) (did) bodily harm to (state the name and rank of the alleged victim) by (state the alleged manner of the assault or battery);
(2) That the (attempt) (offer) (bodily harm) was done unlawfully;
(3) That the (attempt) (offer) (bodily harm) was done with force or violence;
(4) That (state the name and rank of the alleged victim) was a commissioned officer of the (the United States Army) (__________); and
(5) That the accused then knew that (state the name and rank of the alleged victim) was a commissioned officer of the (the United States Army) (__________).
The UCMJ clarifies that it is not necessary for the victim to be superior in rank to the accused or for the victim to be in the execution of office at the time of the assault.
Maximum Punishment: Dishonorable discharge, total forfeiture of all pay and allowances, 3 years confinement and reduction in rank to E-1.
Assault Upon a Warrant, Noncommissioned, or Petty Officer – For a service member to be found guilty, the prosecution must satisfy the following five elements:
(1) That (state the time and place alleged) the accused (attempted to do) (offered to do) (did) bodily harm to (state the name and rank of the alleged victim) by (state the alleged manner of the assault or battery);
(2) That the (attempt) (offer) (bodily harm) was done unlawfully;
(3) That the (attempt) (offer) (bodily harm) was done with force or violence;
(4) That (state the name and rank of the alleged victim) was a (warrant) (noncommissioned) (petty) officer of the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard); and
(5) That the accused then knew that (state the name and rank of the alleged victim) was a (warrant) (noncommissioned) (petty) officer of the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard).
Maximum Punishment: Assault upon a warrant officer comes with a dishonorable discharge, total forfeiture of all pay and allowances, 18 months confinement and reduction in rank to E-1.
Assault upon a noncommissioned or petty officer comes with a bad conduct discharge, total forfeiture of all pay and allowances, 6 months confinement and reduction in rank to E-1.
Assault Upon A Sentinel or Lookout – For a service member to be found guilty, the prosecution must satisfy the following five elements:
(1) That (state the time and place alleged), the accused (attempted to do) (offered to do) (did) bodily harm to (state the name and rank of the alleged victim) by (state the manner alleged);
(2) That the (attempt) (offer) (bodily harm) was done unlawfully;
(3) That the (attempt) (offer) (bodily harm) was done with force or violence;
(4) That (state the name and rank of the alleged victim) was a (sentinel) (lookout) who was then in the execution of his/her duty; and
(5) That the accused knew that (state the name and rank of the alleged victim) was a (sentinel) (lookout) in the execution of his/her duty.
Maximum Punishment: Dishonorable discharge, total forfeiture of all pay and allowances, 3 years confinement and reduction in rank to E-1.
Assault Upon A Person In The Execution of Law Enforcement Duties – For a service member to be found guilty, the prosecution must satisfy the following five elements:
(1) That (state the time and place alleged), the accused (attempted to do) (offered to do) (did) bodily harm to (state the name and rank of the alleged victim) by (state the manner alleged);
(2) That the (attempt) (offer) (bodily harm) was done unlawfully;
(3) That the (attempt) (offer) (bodily harm) was done with force or violence;
(4) That (state the name and rank of the alleged victim) was a person who then had and was in the execution of (military police) (law enforcement) (__________) duties; and
(5) That the accused knew that (state the name and rank of the alleged victim) then had and was in the execution of such duties.
Maximum Punishment: Dishonorable discharge, total forfeiture of all pay and allowances, 3 years confinement and reduction in rank to E-1.
How Often Do Article 128 Charges Occur In The Military?
The types of assault charges just laid out before are the most common charges and that’s primarily because they can occur on any given day within the daily happenings of military life. Marines getting drunk in the barracks is a daily occurrence and as such, Marines fighting each other when drunk ensues. The 5 foot 1 inch kid just got promoted to Corporal and then runs his mouth at the 6 foot 3 inch E-2 who then learns the E-2 doesn’t mind getting bust down to E-1 if he gets to get a couple of good hits on the new Corporal.
The worst part about assault charges is that they are not consistently enforced or reported. In one command, fights are broken up and brushed off as just a Soldier’s fight. In another command, assault charges are thrown down and a young service member has their career ruined for doing what Soldiers have done since the days of Valley Forge. Fights happen in the military, they just do. It shouldn’t be ending the careers of otherwise good men and women.
How To Fight Back And Win Against Assault Charges Under Article 128?
If you are facing assault charges under Article 128, there is a better than average chance that there was a fight and someone got hurt. It just doesn’t happen that you were sitting in your barracks room reading your Bible and were somehow misidentified as committing assault. You were doing something stupid, maybe you were drinking, and perhaps, that 5 foot 1 newly minted Corporal had it coming.
What you need to understand about fighting these charges is that it is essential for you to fight, even if you did drop someone. This can be about gaining you complete exoneration, but it can also be about securing you the best possible outcome. You have to understand that the military justice system has to make an example out of someone to scare others into compliance. If you let them think they have an easy win, they will take that soldier’s fight and destroy you just to scare the hell out of everyone else.
The prosecution will try to cover up the fact that the officer you dropped was himself drunk and completely divested himself of any status. The prosecution won’t care if you are decorated from the GWOT wars if ending your career means getting another win. You have to fight like hell to make sure you are not that easy win and that you are going to fight for your career, retirement, and your freedom.
Military Defense Attorney for Article 128 of the UCMJ: Strategies and Tactics
We’ve never seen an assault case that was as clear-cut as the prosecution made it out to be. Assault is a complex crime with many possible defense strategies and tactics at play. The events leading up to and during the alleged assault, the true extent of the damage, and the intent of the accused and the alleged victim are of critical importance for planning and winning your court-martial case.
If you are facing assault charges under Article 128, reach out to us and we’ll give you a free defense strategy session. You can take the information we give you and use it on your own, even if you choose not to retain us. Just know that we are the heavy hitters in the game and that’s why service members fly us in from all over the world to defend their cases.
Yeah, you may have dropped someone that had it coming, but we’ll take the fight to the prosecution and put them on their heels. Don’t get bullied out of the military because you did what soldiers have been doing since the inception of warfare. Fight back for your career so that our nation can keep you in the one fight that truly matters.
Frequently Asked Questions About Article 128
The Manual for Court Martial defines multiple maximum punishments under Article 128, each corresponding with a particular criminal offense of assault. The lesser maximum offense involves general simple assault, which includes:
- Forfeiture of two-thirds pay for 3 months
- Confinement for 3 months
The maximum sentence for an assault charge involves the use of a loaded firearm or the assault of a child under the age of 16. In these instances, a service member may be charged with:
- Reduction to E-1
- Forfeiture of all pay and allowances
- Confinement for 8 or 10 years
- Dishonorable discharge
Yes, depending on the context of the assault and the circumstances surrounding the events leading up to it. We’ve secured reduced charges for service members accused of aggravated assault in the past. With that said, our first priority is to win your case outright. A not-guilty verdict is our ultimate goal. If we feel that isn’t the best course of action, we’ll look at your case from an angle of reducing charges first.
Yes. We explain the legal concept of self-defense in more detail on our website. But if you were acting in self-defense of yourself or in self-defense of another, they that may be a full defense to your charges under this article.