Charged With Aggravated Assault?

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Court Martial Lawyer For Assault and Aggravated Assault – Article 128

The truth of the matter is that service members have been getting into drunken fights since 1776 and this won’t change anytime soon. Some of these fights can get taken too far and it doesn’t have to ruin a career or a life. Just because you threw a punch doesn’t mean you throw your career away at the same time. While the concepts of assaults may simple, the law in this area is quite complex. Here, we discuss the numerous ways in which you can be charged under Article 128 of the UCMJ, how the terms are defined, the maximum sentences and some of the defenses. We address self defense and defense of others in detail on our self defense page. As always, your best bet is to give us a call and we can discuss the nuances of your individual case. We will always shoot you straight and make you’re your questions get answered.

Assault - Article 128 UCMJ

Simple Assault Under Article 128, UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits a simple assault when they attempted or offered to do bodily harm to the alleged victim; when the attempt or offer was done unlawfully; and when the attempt or offer was done with force or violence.

The maximum punishment for simple sssault when committed with an unloaded firearm is Reduction to E-1, forfeiture of all pay and allowances, confinement for 3 years and a dishonorable discharge.

In all other cases, the maximum punishment for simple assault is reduction to E-1, forfeiture of two thirds pay for three months and confinement for 3 months.

Assault Consummated by a Battery Under Article 128, UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits assault consummated by battery when they did bodily harm to the alleged victim; when that the bodily harm was done unlawfully; and when that the bodily harm was done with force or violence.

The maximum punishment for assault consummated by battery is Reduction to E-1, forfeiture of all pay and allowances, confinement for 6 months and a bad conduct discharge.

Assault Upon a Commissioned Officer Under Article 128, UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits assault upon a commissioned officer when they attempted to do, offered to do or did bodily harm to the alleged victim; when that attempt, offer or bodily harm was done unlawfully; when that the attempt, offer or bodily harm was done with force or violence; then the alleged victim was a commissioned officer of the United States military; and the person knew that the alleged victim was a commissioned officer in the United States military.

It is not necessary that the victim be superior in rank or command to you, or in the same armed force as you. It is not necessary that the alleged victim be in the execution of office at the time of assault.

If the evidence raises an issue as to whether the officer conducted himself / herself prior to the charged assault in a manner that took away his or her status as a commissioned officer, you may have a defense. An officer whose own language and conduct under all the circumstances departs substantially from the required standards appropriate for a commissioned officer under similar circumstances is considered to have abandoned his or her status as a commissioned officer. In determining this issue, the jury must consider all the relevant facts and circumstances.

The jury may find you guilty of the offense of assault upon a commissioned officer only if they are convinced beyond a reasonable doubt that the office, by his or her conduct and language did not abandon his/her status as a commissioned officer.

The maximum punishment for assault on a commissioned officer is Reduction to E-1, forfeiture of all pay and allowances, confinement for 3 years and a dishonorable discharge.

Assault Upon a Warrant, Noncommissioned or Petty Officer Under Article 128, UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits assault upon a warrant, noncommissioned officer or petty officer when they attempted to do, offered to do, or did bodily harm to alleged victim; when the attempt, offer or bodily harm was done unlawfully; when the attempt, offer or bodily harm was done with force or violence; when the alleged victim was a warrant, noncommissioned or petty officer of the United States Army, Navy, Marine Corps, Air Force or Coast Guard); and that they knew that alleged victim was a warrant, noncommissioned or petty officer of the United States Army, Navy, Marine Corps, Air Force or Coast Guard.

It is not necessary that the alleged victim be superior in rank or command to you, or in the same armed force as you. It is not necessary that the alleged victim be in the execution of office at the time of assault.

If the evidence raises an issue as to whether alleged victim conducted himself or herself prior to the charged assault in a manner that took away his or her status as a warrant, noncommissioned or petty officer, you may have a defense. An officer whose own language and conduct under all the circumstances departs substantially from the required standards appropriate for a warrant, noncommissioned or petty officer under similar circumstances is considered to have abandoned his/her status as a warrant, noncommissioned or petty officer.

The jury find you guilty of the offense of assault upon a warrant, noncommissioned or petty officer only they are convinced beyond a reasonable doubt that the alleged victim, by his or her conduct and language did not abandon his/her status as a warrant, noncommissioned or petty officer.

The maximum punishment for assault on a warrant officer is reduction to E-1, forfeiture of all pay and allowances, confinement for 18 months and a dishonorable discharge.

The maximum punishment for assault on a noncommissioned or petty officer is reduction to E-1, forfeiture of all pay and allowances, confinement for 6 months and a bad conduct discharge.

Assault Upon a Sentinel or Lookout Under Article 128, UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits assault upon a a sentinel or lookout when they attempted to do, offered to do or did bodily harm to the alleged victim; when the attempt, offer or bodily harm was done unlawfully; when the attempt, offer or bodily harm was done with force or violence; when the alleged victim was a sentinel or lookout who was then in the execution of his or her duty; and when that person knew that the alleged victim was a sentinel or lookout in the execution of his or her duty.

A sentinel or lookout is a person whose duties include the requirement to maintain constant alertness, be vigilant, and remain awake, in order to observe for the possible approach of the enemy, or to guard persons, property, or a place, and to sound the alert, if necessary.

A sentinel or lookout is “in the execution of his/her duty” when doing any act or service required or authorized to be done by statute, regulation, the order of a superior, military usage, or by custom of the service.

If the raises an issue as to whether the alleged victim conducted himself or herself prior to the charged assault in a manner that took away his or her status as a sentinel or lookout acting in the execution of his or her duty. A sentinel or lookout whose own language and conduct under all the circumstances departs substantially from the required standards appropriate for the sentinel’s or a lookout’s rank and position under similar circumstances is considered to have abandoned that position.

The jury may find you guilty of assault on a sentinel or lookout in the execution of his or her duties only if they are satisfied beyond a reasonable doubt that the alleged victim, by his or her conduct and language did not abandon his or her status as a sentinel or lookout) acting in the execution of his or her duty.

The maximum punishment for assault on a sentinel or lookout is reduction to E-1, forfeiture of all pay and allowances, confinement for 3 years and a dishonorable discharge.

Assault Upon a Person in the Execution of Law Enforcement Duties Under Article 128, UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits assault upon a person in the execution of law enforcement duties when they attempted to do, offered to do or did bodily harm to the alleged victim; that the attempt, offer or bodily harm was done unlawfully; that the attempt, offer or bodily harm was done with force or violence; that the alleged victim was a person who then had and was in the execution of military police or law enforcement duties; and that the person knew that the alleged victim then had and was in the execution of such duties.

A person is “in the execution of military police or law enforcement duties” when doing any law enforcement act or service required or authorized to be done by him/her by statute, regulation, the order of a superior, military usage, or by custom of the service.

The maximum punishment for assault on a person in the execution of law enforcement duties is reduction to E-1, forfeiture of all pay and allowances, confinement for 3 years and a dishonorable discharge.

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Aggragated Assault – Article 128, UCMJ

Aggravated Assault With a Dangerous Weapon Under Article 128, UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits aggravated assault with a dangerous weapon when they assaulted the alleged victim by offering to do bodily harm to him or her; that they did so with a certain weapon; that they intended to do bodily harm; and that the weapon was a dangerous weapon or a loaded firearm.

A weapon is a “dangerous weapon” when used in a manner capable of inflicting death or grievous bodily harm. What constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to kill or inflict grievous bodily harm.

“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive. A fully functional revolver with an automatic rotating cylinder is a loaded weapon if there is a round of live ammunition in any chamber. A functional clip or magazine fed weapon is a loaded weapon if there has been inserted into it a clip magazine containing a round of live ammunition, regardless of whether there is a round in the chamber.

An alleged victim may not lawfully consent to an assault with a dangerous weapon. Consent is not a defense to this offense.

The maximum punishment for aggravated assault with a dangerous weapon is:

With a loaded firearm: reduction to E-1, forfeiture of all pay and allowances, confinement for 8 years and a dishonorable discharge.
Committed upon a child under the age of 16, spouse, intimate partner, or an immediate family member: The maximum punishment for assault on a person in the execution of law enforcement duties is reduction to E-1, forfeiture of all pay and allowances, confinement for 5 years and a dishonorable discharge.
Other cases: The maximum punishment for assault on a person in the execution of law enforcement duties is reduction to E-1, forfeiture of all pay and allowances, confinement for 3 years and a dishonorable discharge.

Aggravated Assault With Substantial Bodily Harm Under Article 128, UCMJ.

Under Article 128 of the Uniform Code of Military Justice, a person commits aggravated assault with substantial bodily harm when they assaulted the alleged victim; and that substantial bodily harm was thereby inflicted upon the alleged victim.

“Substantial bodily harm” means a bodily injury that involves a temporary but substantial disfigurement, or a temporary but substantial loss or impairment of function of any bodily member, organ, or mental faculty.

A victim may not lawfully consent to an assault in which substantial bodily harm is inflicted. Consent is not a defense to this offense.

The maximum punishment for aggravated assault with a substantial bodily harm is:

With a loaded firearm: reduction to E-1, forfeiture of all pay and allowances, confinement for 8 years and a dishonorable discharge.
Committed upon a child under the age of 16, spouse, intimate partner, or an immediate family member: The maximum punishment for assault on a person in the execution of law enforcement duties is reduction to E-1, forfeiture of all pay and allowances, confinement for 6 years and a dishonorable discharge.
Other cases: The maximum punishment for assault on a person in the execution of law enforcement duties is reduction to E-1, forfeiture of all pay and allowances, confinement for 3 years and a dishonorable discharge.

Aggravated Assault With Infliction of Grievous Bodily Harm Under Article, 128 UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits aggravated assault with grevious bodily harm when they assaulted the alleged victim, and that grievous bodily harm was thereby inflicted upon the victim.

“Grievous bodily harm” means a bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

A victim may not lawfully consent to an assault in which grievous bodily harm is inflicted. Consent is not a defense to this offense.

The maximum punishment for aggravated assault with infliction of grievous bodily harm is:

With a loaded firearm: reduction to E-1, forfeiture of all pay and allowances, confinement for 10 years and a dishonorable discharge.
Committed upon a child under the age of 16, spouse, intimate partner, or an immediate family member: The maximum punishment for assault on a person in the execution of law enforcement duties is reduction to E-1, forfeiture of all pay and allowances, confinement for 8 years and a dishonorable discharge.
Other cases: The maximum punishment for assault on a person in the execution of law enforcement duties is reduction to E-1, forfeiture of all pay and allowances, confinement for 5 years and a dishonorable discharge.

Aggravated Assault With Strangulation or Suffocation Under Article 128, UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits aggravated assault with strangulation or suffocation they assault the alleged victim strangling or suffocating them.

“Strangling” means intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the throat or neck, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.

“Suffocating” means intentionally, knowingly, or recklessly impeding the normal breathing of a person by covering the mouth of a person, the nose of a person, or both, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.

Aggravated Assault with Intent to Commit Certain Offenses Under Article 128, UCMJ

Under Article 128 of the Uniform Code of Military Justice, a person commits aggravated assault with intent to commit certain offenses when they assaulted the alleged victim; and at the time, they intended to kill, commit rape, rape of a child, sexual assault, sexual assault of a child, robbery, arson, burglary, or kidnapping.

Proof that the intended offense occurred or was committed by you is not required. However, the jury must be convinced beyond a reasonable doubt that, at the time of the assault, you had the specific intent to commit the intended offense.

To convict you of this offense, proof that you only intended to inflict great bodily harm upon the alleged victim is not sufficient. The prosecution must prove beyond a reasonable doubt that you specifically intended to kill the alleged victim.

The maximum punishment for aggravated assault with intent to commit certain crimes is:

With intent to commit murder, rape, or rape of a child: reduction to E-1, forfeiture of all pay and allowances, confinement for 20 years and a dishonorable discharge.
With intent to commit voluntary manslaughter, robbery, arson, burglary, or kidnapping: reduction to E-1, forfeiture of all pay and allowances, confinement for 10 years and a dishonorable discharge.

Maiming Under Article 128a, UCMJ

Under Article 128a of the Uniform Code of Military Justice, a person commits maiming when they inflict upon the victim a certain injury; that this injury seriously disfigured the body of the alleged victim, destroyed or disabled an organ or member of the alleged victim, seriously diminished the physical vigor of alleged victim by injuring an organ or other part of his or her body; and that the person inflicted this injury with an intent to cause some injury to the person of the alleged victim.

A disfigurement does not have to mutilate an entire member or be of any particular type, but must be such as to impair perceptibility and materially the victim’s comeliness.

The disfigurement diminished physical vigor, or destruction or disablement of the body part must be a serious injury of a substantially permanent nature. Once the injury is inflicted, it does not matter that the victim may eventually recover the use of the body part, or that the disfigurement may be corrected medically or cured by surgery.

Maiming requires a specific intent to injure generally but not a specific intent to maim. Thus, one commits the offense who intends only a slight injury, if in fact there is infliction of an injury of the type specified in this article. Infliction of the type of injuries specified in this article upon the person of another may support an inference of the intent to injure, disfigure, or disable. The drawing of this inference is not required.

The maximum punishment for maiming is reduction to E-1, forfeiture of all pay and allowances, confinement for 20 years and a dishonorable discharge.

Legal Definitions for Assault Under Article 128, UCMJ

An “assault” is an unlawful attempt, made with force or violence, to do bodily harm to another, whether the attempt is consummated. You must have committed an overt act with the specific intent to inflict bodily harm.

An “overt act” is an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. It is not necessary that bodily harm be inflicted.

“Bodily harm” means an offensive touching of another, however slight.

An attempt to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
An “assault” is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated. You must have made a demonstration of violence, either by an intentional or by a culpably negligent act or omission, which created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required. It is not necessary that bodily harm be inflicted.

The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, if the combination constitutes a demonstration of violence.

An offer to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.

An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional or a culpably negligent act or omission.

An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.

“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent act or failure to act accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.

“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.

Fighting Your Article 128 Charges

As complex as this area of law is, you’re probably wondering if fighting your charges is worth the effort. We are here to say that you are worth the fight. We represent service members facing charges including aggravated assault, assault, and cases involving self-defense and defense of another.

If you ready to fight your assault or aggravated assault charges, give us a call and we are happy to do a consultation with you. At Bilecki Law Group, we will always shoot you straight and tell it like it is. If you are ready to fight, so are we.