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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.

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