At Bilecki Law Group, we defend service members against charges of domestic violence under Article 128b of the UCMJ. There are always two sides of the story and we are ready to fight and believe yours.
What Is Article 128b Of The UCMJ?
Article 128b of the UCMJ governs domestic violence charges against members of the United States Armed Services. It includes violent offenses against a spouse, intimate partner, dating partner or immediate family member, as well as specified offenses against people or property committed with the required intent to threaten or intimidate a protected partner or family member. The particular charged form determines what the government must prove.
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) (dating 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) (dating 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) (dating 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) (dating 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) (dating 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) (dating 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.
Article 128b does not have one confinement formula for every charge. For the provisions covering a violent offense, an offense intended to threaten or intimidate, or an offense against property intended to threaten or intimidate, the maximum is generally the underlying offense’s confinement maximum plus three years. That addition does not apply where the underlying maximum includes death or life imprisonment. A protection-order violation committed with intent to threaten or intimidate carries a three-year maximum; one committed with intent to commit a violent offense carries five years. Assault by strangulation or suffocation carries eight years, or eleven years when committed upon a child under sixteen. These provisions can also authorize a dishonorable discharge, total forfeitures, and reduction of an enlisted member to E-1. The offense date matters, particularly for conduct before the punishment provisions took effect on 26 January 2022. We need the actual subsection and alleged conduct to tell you what you face.
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 for a free initial consultation. We’ll shoot you straight about what you are facing, discuss urgent issues, and assess whether we are the right firm for your case. 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.
The dating-partner provisions apply to offenses committed on or after 28 December 2023. A dating partner is a person who is or has been in a social relationship of a romantic or intimate nature with the accused, assessed by the relationship’s length, type and frequency of interaction.
Maximum Punishments and Sentencing Parameters
For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. The military judge must sentence within the applicable confinement range unless specific facts justify a departure. If the judge departs, the record must contain a written statement explaining the factual basis. These ranges do not replace the lawful maximum punishment for the offense or the court-martial’s jurisdictional limits. For offenses assigned sentencing criteria instead of a category, the judge must consider those criteria.
The ranges below are stated in months and are limited where the offense has a lower confinement maximum. A special court-martial can impose no more than its own authorized limit, even when an offense or category allows more. The maximum is not a prediction of the sentence in your case.
| Offense | Maximum confinement | Category or criteria | Confinement range in months |
|---|---|---|---|
| Violent offense against a spouse, intimate partner, dating partner or immediate family member | Underlying offense maximum plus 3 years, except where the underlying maximum is death or life | Dependent on underlying offense | Depends on underlying offense |
| UCMJ offense against a person or property, including an animal, with intent to threaten or intimidate the specified family member or partner | Underlying offense maximum plus 3 years, except where the underlying maximum is death or life | Dependent on underlying offense | Depends on underlying offense |
| Protection-order violation with intent to threaten or intimidate | 3 years | Category 2 | 1–36 |
| Protection-order violation with intent to commit a violent offense | 5 years | Category 2 | 1–36 |
| Strangulation or suffocation of the specified family member or partner: child under 16 | 11 years | Category 3 | 30–120 |
| Strangulation or suffocation of the specified family member or partner: other cases | 8 years | Category 2 | 1–36 |
Reduction to E-1 applies to enlisted personnel. Dismissal, rather than a dishonorable or bad-conduct discharge, is the authorized punitive separation for commissioned officers, including commissioned warrant officers, and cadets and midshipmen. The authorized punishment also depends on the offense date and court-martial forum.
Facing an Allegation?
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Frequently Asked Questions About Article 128b
What Is the Maximum Possible Punishment for Domestic Violence?
The maximum depends on the specific Article 128b offense. For the violent-offense and intimidation variants, confinement is generally the maximum for the underlying offense plus three years; that increase does not apply when the underlying maximum is death or life. A protection-order violation with intent to threaten or intimidate carries up to three years, and one with intent to commit a violent offense carries up to five years. Strangulation or suffocation carries up to eleven years when the victim is under sixteen and eight years in other cases. The offenses also authorize a dishonorable discharge and forfeiture of all pay and allowances; reduction to E-1 applies to enlisted personnel. The offense date and forum still control the applicable punishment.
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.