UCMJ Article 128: Assault

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.