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 Article 128, UCMJ. Assault

(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who—

(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or
(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; is guilty of aggravated assault and shall be punished as a court-martial may direct.

Elements.

(1) Simple assault.

(a) That the accused attempted or offered to do bodily harm to a certain person; and
(b) That the attempt or offer was done with unlawful force or violence.

(2) Assault consummated by a battery.

(a) That the accused did bodily harm to a certain person; and
(b) That the bodily harm was done with unlawful force or violence.

. . . .

(4) Aggravated assault.

(a) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.

(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;
(ii) That the accused did so with a certain weapon, means, or force;
(iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and
(iv) That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm.
(Note: Add any of the following as applicable)
(v) That the weapon was a loaded firearm.
(vi) That the person was a child under the age of 16 years.

(b) Assault in which grievous bodily harm is intentionally inflicted.

(i) That the accused assaulted a certain person;
(ii) That grievous bodily harm was thereby inflicted upon such person;
(iii) That the grievous bodily harm was done with unlawful force or violence; and
(iv) That the accused, at the time, had the specific intent to inflict grievous bodily harm.
(Note: Add any of the following as applicable)
(v) That the injury was inflicted with a loaded firearm.
(vi) That the person was a child under the age of 16 years.

For more information on this offense including the maximum military punishment for assault, potential defenses, and a discussion of the strengths and weaknesses of the prosecution’s case, consult with an experienced military lawyer. See successful Article 128 defense case results here.

UCMJ Article 128 & Article 128b FAQ: Assault & Domestic Violence

1. What is the difference between Article 128 and Article 128b under the UCMJ?

  • Article 128 (Assault): Governs general assault offenses—from simple assault and assault consummated by a battery to aggravated assault using a dangerous weapon or causing grievous bodily harm. It applies to acts committed against anyone, regardless of relationship.
  • Article 128b (Domestic Violence): Established to specifically track and prosecute violent acts, threats, strangulation, or protection order violations committed against a spouse, intimate partner, or immediate family member. Prior to Article 128b, domestic incidents were prosecuted under general assault provisions.

2. What specific acts constitute Domestic Violence under Article 128b?

Under Article 128b, a service member commits domestic violence if they engage in any of the following against a protected family or intimate partner:
  • Committing a violent act or battery.
  • Threatening or intimidating a partner/family member through violent actions against a person, property, or pet/animal.
  • Strangling or suffocating a spouse, intimate partner, or family member.
  • Violating a Military Protective Order (MPO) or civilian protection order with the intent to threaten or commit a violent act.

3. Who decides whether an Article 128b charge goes to a Court-Martial?

Following military justice reforms enacted under the NDAA, jurisdiction over covered offenses—including Article 128b Domestic Violence—was shifted from military commanders to the independent Office of the Special Trial Counsel (OSTC).
  • If the OSTC finds sufficient evidence, it retains decision-making authority on referring the case to a court-martial.
  • If the OSTC declines to prosecute at court-martial, the case returns to the unit commander for potential administrative action.

4. If the OSTC or prosecutor declines a Court-Martial, am I in the clear?

No. Military regulations mandate that branches initiate mandatory administrative separation processing for founded acts of domestic violence, even when evidence is deemed insufficient for a criminal court-martial conviction. If court-martial charges are dropped or declined, commanders typically pursue:
  • Administrative Separation (AdSep) / Board of Inquiry: Proceedings to involuntarily discharge you, often under Other Than Honorable (OTH) conditions.
  • General Officer Memorandum of Reprimand (GOMOR): A severe administrative letter placed permanently into your official military personnel file.
  • Non-Judicial Punishment (NJP / Article 15): Local disciplinary action imposing pay forfeitures, extra duty, or rank reduction.

5. What are the long-term consequences of an Article 128b conviction or discharge?

A conviction at court-martial or an administrative discharge tied to domestic violence carries life-altering repercussions:
  • Incarceration & Punitive Discharge: Prison time and Dishonorable/Bad Conduct Discharge or Dismissal.
  • Loss of Firearms Rights (Lautenberg Amendment): Federal law prohibits anyone convicted of a qualifying misdemeanor or felony domestic violence offense from shipping, transporting, possessing, or receiving firearms or ammunition—making continued military service legally impossible.
  • Loss of Veterans’ Benefits: Less-than-honorable discharges can forfeit GI Bill benefits, VA health care, and retirement pay.
  • Impact on Child Custody: Findings of domestic abuse significantly hinder civil divorce, alimony, and child custody arrangements.

6. Why are domestic violence allegations in the military so vulnerable to false reports?

While genuine domestic abuse is a serious issue, false or exaggerated allegations can occur during high-stress domestic situations. Common drivers include:
  • Divorce or Custody Disputes: Allegations used strategically to gain an advantage in civil family court proceedings.
  • Misinterpreted Statements from 911 Calls: A neighbor or third party may call 911 during a heated argument; when law enforcement arrives, panicked or emotional statements given by either party can be misinterpreted by investigators as criminal assault.
  • Retaliation or Relationship Disputes: Claims made out of anger, revenge, or a desire to sabotage a service member’s career.

7. What should I do immediately if I am questioned about a domestic violence allegation?

  • Exercise Your Right to Remain Silent: Under Article 31(b) of the UCMJ, you have the absolute right to refuse to answer questions from military investigators (CID, NCIS, OSI, CGIS) or local police. Expressing your side of the story without an attorney often provides investigators with statements used to build a case against you.
  • Refuse Unadvised Consent: Do not consent to searches of your home, phone, or electronic communications without legal counsel.
  • Consult a Defense Lawyer Immediately: Contact an experienced military defense attorney before making any official statements, responding to a GOMOR, or attending an administrative separation hearing.

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