Article 128 UCMJ

What is Article 128 of the UCMJ?

Article 128 of the Uniform Code of Military Justice covers the criminal offense of assault, which is the unlawful attempt or infliction of bodily harm, made with force or violence, to another. As found in 10 U.S. Code § 928, any person who is subject to this chapter and knowingly violates it will be punished as directed by a court-martial. The code covers assault offenses, aggravated assault offenses, and assault with intent to commit specified offenses within the military. Below is the exact text as specified by the legal statute:

(a) Assault

Any person subject to this chapter who, unlawfully and with force or violence—

1. Attempts to do bodily harm to another person;
2. Offers to do bodily harm to another person; or
3. Does bodily harm to another person;

is guilty of assault and shall be punished as a court-martial may direct.

(b) Aggravated Assault

Any person subject to this chapter—

1. Who, with the intent to do bodily harm, offers to do bodily harm with a dangerous weapon¹;
2. Who, in committing an assault, inflicts substantial bodily harm or grievous bodily harm on another person; or
3. Who commits an assault by strangulation or suffocation;

is guilty of aggravated assault and shall be punished as a court-martial may direct.

(c) Assault with Intent to Commit Specified Offenses

1. In general.—

Any person subject to this chapter who commits assault with intent to commit an offense specified in paragraph (2) shall be punished as a court-martial may direct.

2. Offenses specified.—

The offenses referred to in paragraph (1) are murder, voluntary manslaughter, rape, sexual assault, rape of a child, sexual assault of a child, robbery, arson, burglary, and kidnapping.

Elements of UCMJ Art. 128

Within the three main categories of assault as prescribed in the statute (assault, aggravated assault, and assault with intent to commit specified offenses) are more specific elements that may influence the type of assault charge, and thus, the punishment, that is assigned to the defendant. These elements include whether the act is considered one of simple assault, an assault consummated by a battery, an assault against a protected class of victim, an assault with aggravating factors, and an assault with the intent to commit another criminal offense. Below, we’ll break down each of these elements further.

Simple Assault

Elements of a simple assault charge include:

• The accused attempted to do or offered to do² bodily harm to a certain person;
• The attempt or offer was done unlawfully;
• The attempt or offer was done with unlawful force or violence.

Assault Consummated by a Battery

Elements of the charge of assault consummated by battery include:

• The accused did bodily harm to a certain person;
• The bodily harm was done unlawfully;
• The bodily harm was done with force or violence.

Define Consummated

An assault “consummated by a battery” means that the assault was seen through. In other words, while simple assault may be considered the mere attempt or offer to commit bodily harm against another, consummated assault means that the act was put into effect and did in fact cause bodily harm to another.

Assaults Permitting Increased Punishment Based on Status of Victim

This charge depends on the status of the victim of the assault. It includes:

• Assault upon a commissioned, warrant, noncommissioned, or petty officer;
• Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties;
• Assault consummated by a battery upon a child under 16 years, a spouse, intimate partner, or immediate family member.

Aggravated Assault

There are certain circumstances that when present may increase the charges against the defendant. These are known as aggravating factors and include:

• Assault with a dangerous weapon;
• Assault in which substantial bodily harm³ is inflicted;
• Assault in which grievous bodily harm⁴ is inflicted;

Assault with Intent to Commit Specified Offenses

An assault charge may increase in severity if it can be proven that the accused intended to commit another violent crime. The specified offenses as listed in Article 128 include:

• Murder or voluntary manslaughter
• Rape
• Rape of a child
• Sexual assault
• Sexual assault of a child
• Robbery
• Arson
• Burglary
• Kidnapping

Article 128 UCMJ Punishment

Simple Assault

As prescribed by Article 128 of the UCMJ, the maximum punishment for simple assault is 3 months confinement and the forfeiture of two-thirds pay for 3 months.

If the simple assault was committed with an unloaded firearm, the sentence increases to confinement for 3 years, the forfeiture of all pay and allowances, and a dishonorable discharge.

Battery

There are multiple punishments prescribed for assault consummated by a battery depending on the status of the alleged victim. In general, the maximum punishment is 6 months confinement, the forfeiture of all pay and allowances, and a bad conduct discharge. Below are the increased punishments based on the status of the victim:

• Commissioned officer or a friendly foreign power (not in the execution of office) – 3 years confinement, forfeiture of all pay and allowances, and a dishonorable discharge.
• Warrant officer (not in the execution of office) – 18 months confinement, forfeiture of all pay and allowances, and a dishonorable discharge.
• Noncommissioned or petty officer (not in the execution of office) – 6 months confinement, forfeiture of all pay and allowances, and a bad-conduct discharge.
• Sentinel, lookout, or other military or civilian law enforcement duties⁵ (in the execution of office) – 3 years confinement, forfeiture of all pay and allowances, and a dishonorable discharge.
• Child under 16, spouse, intimate partner, or immediate family member – 2 years confinement, forfeiture of all pay and allowances, and a dishonorable discharge.

Aggravated Assault

The maximum punishment for aggravated assault depends on the aggravating factors involved and the circumstances surrounding them, such as whether it was committed with a loaded firearm or with enough force likely to produce death or grievous bodily injury. For aggravated assault with a dangerous weapon, the accused faces a dishonorable discharge, the total forfeiture of all pay and allowances, and between 3 to 8 years confinement, depending on the circumstances of the case.

For charges of aggravated assault in which substantial bodily harm is inflicted, punishments also include dishonorable discharge, the total forfeiture of all pay and allowances, and between 3 to 8 years confinement, depending on the circumstances of the case.

In cases of aggravated assault in which grievous bodily harm was inflicted, the accused faces a dishonorable discharge, the total forfeiture of all pay and allowances, and between 5 to 10 years confinement, depending on the circumstances of the case.

Assault with Intent to Commit Specified Offenses

The maximum punishment for assault with intent to commit murder, rape, or rape of a child includes dishonorable discharge, total forfeitures, and 20 years of confinement.

For charges of assault with intent to commit voluntary manslaughter, robbery, arson, burglary, and kidnapping, maximum punishments include a dishonorable discharge, total forfeitures, and up to 10 years of confinement.

UCMJ Article 128 Violation Defense

In order for the prosecution to secure a conviction, it must be proven that the accused intentionally inflicted harm. (In cases that involve attempts, meaning the assault was not actually carried through, it must still be proven that the accused service member generally intended for the act to take place.) If that element of specific intent cannot be met, a conviction can be avoided. If the accused assaulted another individual by means of self-defense, this may also be an eligible defense.

Situations not constituting a defense for an Article 128 violation include that the attempt at assault failed or that the victim retreated.

When you seek the help of a skilled Jacksonville criminal defense attorney like Aden Wilkie, he will use his vast legal resources and knowledge of the military justice system to craft a strategic defense in order to create reasonable doubt surrounding your case and avoid the maximum punishments for your assault case.

North Carolina Military Defense Attorney for Art. 128 Violations

Assault is a complex crime, especially in the scope of military justice. For those facing these charges, their military career and entire future hangs in the balance. That is why it is imperative that service members who face Article 128 violations, whether they’ve just been accused, are under investigation, or are pending court-martial, obtain the help of an experienced military criminal defense attorney.

Never underestimate the importance of having the help of someone who knows the Uniform Code of Military Justice through and through and whose only concern is fighting as hard as possible for your own rights, freedom, career, and future. When you have someone like Aden Wilkie of the The Wilkie Law Group on your side from the very beginning, you ensure that the charges against you are fought aggressively and your rights are protected through the entire duration of your case.

In addition to creating a strong legal defense and handling all court-martial and military criminal justice matters, Aden Wilkie can also provide superior military discharge upgrade counsel and record correction. Located in Jacksonville, NC, The Wilkie Law Group provides Camp Lejeune legal services and Fort Bragg legal services, in addition to serving other bases, camps, stations, and posts across the nation.

Please keep in mind that this article is for general information purposes. Once an attorney-client relationship with Aden Wilkie is established, you will be able to learn more about your legal options regarding your Article 128 assault case. Call (910) 548-7846 today for a consultation or complete our online intake form to learn more.

Footnotes

1. A “dangerous weapon” does not necessarily refer to a certain weapon, but rather its capacity to inflict death or grievous bodily harm.
2. To attempt assault means the accused specifically intended to inflict bodily harm through an overt act—that is, an act that amounted to more than mere preparation and apparently tends to effect the intended bodily harm. Meanwhile, an offer-type assault is defined as the unlawful demonstration of violence, either by an intentional or by a culpably negligent act or omission, which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm.
3. This refers to injuries that involve a substantial risk of temporary disfigurement or temporary loss or impairment of function of any bodily member, organ, or mental faculty.
4. To inflict grievous bodily harm means to cause an injury that is likely to produce death; extreme physical harm or pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
5. Includes security police, military police, shore patrol, master at arms, etc.

Contact an Article 128 Counseling Attorney

It is vital to use the knowledge of a seasoned attorney to organize and prioritize the material to present to the command. Call The Wilkie Law Group at (910) 548-7846 to arrange your consultation.