UCMJ Article 128: Assault

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What is Article 128?

A service member of the United States Armed Forces who attempts or succeeds in bringing unlawful violence upon another person will be accused of assault under Article 128 of the UCMJ. Sentencing for an assault conviction will depend on many factors, including the use of a weapon, the status or age of the individual assaulted, and the extent of the damage inflicted. A conviction of assault could mean the end of your military career and the loss of your liberties and freedoms as a U.S. citizen:

Assault crimes have a vast range of possible prison sentences, but it would not be unreasonable to expect 3 to 5 years in prison.
You will almost certainly be stripped of your military rank and position and punitively discharged from the military.
Whatever military benefits and retirement you’ve earned will be taken from you, as will your healthcare and salary.

What Are The Elements of Article 128 of the UCMJ?

Every one of the punitive articles that art listed under the UCMJ requires prosecutors to prove beyond a reasonable doubt a handful of critical assumptions—known as elements—to convict a service member of a crime. Four offenses are described in Article 128, each with its own set of elements under Article 128, each with its own set of elements:

Simple assault
1. That the accused attempted or offered to do bodily harm to a certain person; and
2. That the attempt or offer was done with unlawful force or violence.
Assault consummated by a battery
1. That the accused did bodily harm to a certain person; and
2. That the bodily harm was done with unlawful force or violence.
Assaults permitting increased punishment based on the status of the victim
1. Assault upon a commissioned, warrant, noncommissioned, or petty officer.
2. An assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties.
3. Assault consummated by a battery upon a child under 16 years.
Aggravated assault
1. Assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm.
2. Assault in which grievous bodily harm is intentionally inflicted.

(Note: Numbers 3 and 4 further consider additional criminal offenses based upon the status of the victim, the weapon used in the assault and the extent of the damage inflicted.)

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Summary of the Elements of Article 128

All offenses listed under Article 128 exist to further define the gravity of the assault committed. Under every circumstance, prosecutors must prove that the accused attempted to or actually committed bodily harm to another through the illegal use of force.

Additionally, prosecutors may attempt to show that:

The person injured was a military officer, law enforcement, or a sentinel/lookout
That the weapon used was a deadly weapon
That the damage inflicted was grievous and could have caused death to the victim.

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.

To prepare for your case, we’ll perform a full investigation into the alleged assault. Some of the aspects of the crime we’ll follow up on include:

The events leading up to the assault. What initiated the fight in this instance, and were others present to see the fight start? Was the fight spontaneous or premeditated? Was drinking involved prior to the assault? Do you have an alibi for the time of the assault, and could the victim have incorrectly identified you as the perpetrator?
The extent and nature of the damage. How extensive is the damage to the victim? Do medical reports verify the claims made by the alleged victim as to the extent of those damages? What is the recovery time of the alleged victim? Can the weapon used in the assault be verified and was it found? Was the weapon being used defensively or offensively?
The intent of the accused and the alleged victim. Do you have a history with the alleged victim? Have altercations occurred in the past? Was the victim threatening you or a family member, or did you strike out in fear or in self-defense? Did you know the status of the individual at the time of the assault (i.e. were you aware he or she was an officer of the U.S. Armed Forces)?

Accusations of assault have destroyed promising military careers. Do not let it happen to you. Fight back TODAY by making a single call to Bilecki & Tipon.

Experienced Military Defense Lawyers for Article 128 Charges

The military defense attorneys at Bilecki & Tipon have been defending service members accused of assault crimes for years. We have saved our clients from decades of jail time and spared them of the loss of hundreds of thousands of dollars in military benefits and retirement. Bilecki & Tipon will help you fight back against charges under Article 128: Assault

Frequently Asked Questions About Article 128

What Is the Maximum Possible Punishment for Article 128: Assault?

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

Can You Help Me Reduce My Charges from Aggravated Assault to Simple Assault?

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.

If I was Acting in Self-Defense, can I be Found Not-Guilty?

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.