UCMJ Article 128b: Domestic Violence
What Is Article 128b Of The UCMJ?
Article 128b of the UCMJ governs charges of domestic violence as committed by members of the United States Armed Services. It defines domestic violence as that which is committed against a spouse, intimate partner or immediate family member.
Now, we defend service members against charges of domestic violence for two specific reasons. The first is that our legal system presupposes and demands an adequate defense for all charges in order to work. That’s just how justice works. The second reason is that we see absurd, exaggerated and in many cases, completely fabricated accusations of domestic violence with some regularity.
This means that an otherwise innocent man or woman is going to have their lives completely destroyed by the military justice system if there is no one there to believe them. Yes, there are men who wrongly accuse a woman of domestic violence. This isn’t just a one-sided gender specific problem. Regardless of gender, if you are charged with domestic violence under Article 128b, you need to get ready for a fight because the military justice system is coming to take everything.
What Specific Charges Reside Under Article 128b of the UCMJ?
There are six specific charges that fall under Article 128b of the UCMJ and we’ll list them below along with what must be proven to convict and the maximum punishment. What makes charges of domestic violence so damning for military personnel is that their employer is instantly notified of the charge. In the civilian world, it’s rare that a couple would have a disagreement and perhaps a physical altercation and then the spouse’s employer is notified the next day.
Service members face the end of their careers and oftentimes, just a mere allegation is enough to set them towards a path of career and financial ruin. Moreover, military couples face a litany of stresses that are unique to military service. That’s deployments, frequent relocations, and a culture where alcohol abuse is almost considered the norm. Military relationships are hard, but if
you are facing these charges right now, you could lose more than your partner. Remember though it doesn’t have to be a spouse. Romantic partner or immediate family member is a close enough relationship to be charged under Article 128b.
Violent Offense – 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 committed a violent offense, to wit: (state the alleged violent offense); [and]
(2) That the violent offense was committed against (state the name of the alleged victim) who was, at the time of the violent offense, a/an (spouse) (intimate partner) (immediate family member) of the accused. [and]
[(3)] That, at the time, (state the name of the alleged victim) was a child under the age of 16 years.
Offense With Intent To Threaten Or Intimidate – 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 committed an act in violation of the Uniform Code of Military Justice, to wit: (state the alleged offense);
(2) That the accused committed the act against (state the name of the alleged victim of such act); and
(3) That the accused committed the act with the intent to (threaten) (intimidate) the (spouse) (intimate partner) (immediate family member) of the accused.
Offense Against Any Property With Intent To Threaten Or Intimidate – 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 committed an act in violation of the Uniform Code of Military Justice, to wit: (state the alleged offense);
(2) That the accused committed the act against (state the alleged property or animal against which the offense was committed); and
(3) That the accused committed the act with the intent to (threaten) (intimidate) the (spouse) (intimate partner) (immediate family member) of the accused.
Violation Of Protection Order With Intent To Threaten Or Intimidate – For a service member to be found guilty, the prosecution must satisfy the following three elements:
(1) That (state the time alleged) a lawful protection order was in place;
(2) That (state the time and place alleged) the accused committed an act in violation of that lawful protection order by (state the manner in which the order was allegedly violated); and
(3) That the accused committed the act with the intent to (threaten) (intimidate) a (spouse) (intimate partner) (immediate family member) of the accused.
Violation Of Protection Order With Intent To Commit A Violent Offense – For a service member to be found guilty, the prosecution must satisfy the following three elements:
(1) That (state the time alleged) a lawful protection order was in place;
(2) That (state the time and place alleged) the accused committed an act in violation of that lawful protection order by (state the manner in which the order was allegedly violated); and
(3) That the accused committed the act with the intent to commit a violent offense against a (spouse) (intimate partner) (immediate family member) of the accused.
Assault By Strangulation Or Suffocation – For a service member to be found guilty, the prosecution must satisfy the following three elements, with a 4th as an aggravating factor:
(1) That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) the (spouse) (intimate partner) (immediate family member) of the accused;
(2) That the accused did so by (strangling) (suffocating) (state the name of the alleged victim); [and]
(3) That the (strangulation) (suffocation) was done with unlawful force or violence. [and]
[(4)] That, at the time, (state the name of the alleged victim) was a child under the age of 16 years.
For every charge under Article 128b, the maximum punishment comes with a dishonorable discharge, total forfeiture of all pay and allowances, reduction in rank to E-1 and a confinement period that is set relative to the underlying offense with additional years added on. This means if you committed the act of maiming on a romantic partner, you’d face the maximum confinement outlined under maiming, plus an additional number of years.
How To Fight Back And Win Against Charges of Domestic Violence?
Charges of domestic violence come with a strong societal weight of presumed guilt. That’s because when people hear the term, “domestic violence”, it conjures up some drunken guy in a wife beater t-shirt assaulting his wife because dinner was late. It’s a terrible burden to bear when charged and a damn Greek tragedy if you are completely innocent.
To save your career, retirement, and freedom, you’re going to have to fight like hell to get the truth and the real story accepted as plausible. This won’t be easy because commands are under
a great deal of pressure right now to root out domestic violence. They’re not going to be in a hurry to hear your side of the story. You need a skilled attorney who knows how to take the fight to the military justice system and do so unashamedly
The Military Justice System Is Not Designed To Believe You
Namesake and founder, Tim Bilecki, spent years inside the military justice system as a senior defense counsel for the Army. He can tell you just how much the military justice system is rigged in favor of the prosecution and just how many free JAG defense attorneys don’t want their career to be defined as the guy who got a wife beater off the hook.
The cases we see in the military with regards to domestic violence are not the “redneck with the wife beater” who wants his dinner ready when he gets home. It’s two young couples who are drinking, arguing, and who both did things they regret in the morning. It’s a veteran couple of multiple deployments who are trying to deal with all the stress and trauma that comes along with those deployments. Yes, it is also the romantic partner who knows they were never assaulted, but knows that it will completely destroy their ex-partners life. That happens and to assume it doesn’t would just be blind and willful ignorance.
Those are the cases we see and because the military justice system needs their convictions to scare others into compliance, young men and women pay a terrible price. If you are facing charges of domestic violence under Article 128b, please don’t take it lightly. You’re up against a mountain of presumed guilt. Reach out to us and we’ll shoot you straight on exactly what you are facing and give you a free defense strategy session. The military justice system is not designed to believe, but we’ve witnessed enough innocence first hand to know you deserve to be heard. Reach out to us. We’ll listen and if you are ready to fight like hell for your career, so are we.
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.