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Military Assault & Battery Defense

Allegations of assault and battery, particularly in the military training environment, have become a high-visibility issue for the Department of Defense in recent years.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including assault and battery. Contact one of our military defense lawyers today to learn more.

Article 128, UCMJ (Assault)

Article 128 criminalizes the offenses of assault, aggravated assault, and assault with the intent to commit specified offenses. The elements to these offenses are as follows.


Under the UCMJ, any person who: (1) attempts to do bodily harm to another; (2) offers to be bodily harm to another; or (3) does bodily harm to another person is guilty of assault. Bodily harm is broadly defined as “an offensive touching of another, however, slight.”

Under Article 128, an attempt to do bodily harm is characterized as a simple assault. If there was unlawful contact, however, the act may be charged as assault consummated by battery. Article 128 permits increased punishments for assaults upon commissioned officers, warrant officers, NCOs, petty officers, sentinels, lookouts, and law enforcement personnel executing their duties.

The difference between a simple assault and a battery ultimately comes down to whether or not there was an unlawful touching. For example, an assault occurs if a service member swing his fists in the direction of someone’s head intending to hit the other person but missing. A battery occurs if the service member swinging his fist actually makes contact.

Aggravated Assault

Aggravated assault is, by its very name, more serious than simple assault. It involves the use of a dangerous weapon or infliction of serious bodily harm.

The crime of aggravated assault is committed when any person: (1) who, with an intent to do bodily harm, offers to do bodily harm with a dangerous weapon; or (2) who, in committing an assault, inflicts substantial bodily harm or grievous bodily harm on another person.

The definition of what constitutes a “dangerous weapon” is particularly important. While most people would think of a dangerous weapon as a gun, knife, or baseball bat, the definition of a dangerous weapon under Article 128 is much more broad. In short, any weapon capable of inflicting death or serious bodily harm is considered dangerous. This would include objects like a bottle, beer glass, rock, piece of pipe, boiling water, drugs, or a rifle butt. Under the right circumstances, even a service member’s fists, teeth, feet, elbows, or other body parts could be considered dangerous weapons.

Assault with Intent to Commit Specific Offenses

A third category covers assaults committed during the commission or intended commission of other crimes. This charge applies to any person who commits an assault with the intent of also committing murder, voluntary manslaughter, rape, sexual assault, rape of a child, sexual assault of a child, robbery, arson, burglary, and kidnapping.


Defenses to an assault case depend on the individual circumstances. As with all cases, the elements of the crime must have been committed by the individual. However, since there are various types of the offense of assault, defenses to the elements will change depending on the type of assault alleged.

For instance, consider the intent elements of aggravated assault. Aggravated assault can come in two types: assault with a dangerous weapon or assault which inflicts substantial or grievous bodily injury. To be guilty of the former, the accused must have specifically intended to do bodily harm while using a dangerous weapon. But to be guilty of the latter, the accused only must have generally intended to assault another person; it does not require a specific intent to cause substantial bodily harm.

It is not a defense to a charge of assault that for some unknown reason, an assault was bound to fail. For example, if a person points a loaded rifle at someone and pulls the trigger, that person is guilty of assault even if the cartridge was defective and did not fire.

Maximum Penalties

Since Article 128 encompasses such a wide variety of conduct, the maximum punishment a person can receive depends on the type of assault. Maximum punishment of some of the more frequently charged crimes are as follows:

  • Simple assault: Confinement for 3 months and 2/3 pay forfeiture for three months
  • Assault consummated by battery: Bad conduct discharge; forfeiture of all pay and allowances; confinement for 3 years.
  • Assault upon a commissioned officer: Dishonorable discharge (DD); forfeiture of all pay and allowances; confinement for 3 years.
  • Assault consummated by battery upon a child under 16, a spouse, an intimate partner, or an immediate family member: DD; forfeiture of all pay and allowances; confinement for 2 years.
  • Agg. assault with a dangerous weapon: DD; forfeiture of all pay/allowances – total forfeitures; confinement of 3-8 years.
  • Agg assault inflicting substantial bodily harm: DD; forfeiture of all pay/allowances; confinement of 3-8 years.
  • Agg. assault inflicting grievous bodily harm: DD; forfeiture of all pay/allowances; confinement of 5-10 years.
  • Agg. assault with intent to commit murder, rape, or rape of a child: DD; forfeiture of all pay/allowances; confinement of 20 years.
  • Agg. assault with intent to commit voluntary manslaughter, robbery, arson, burglary, and kidnapping: DD; forfeiture of all pay/allowances; confinement of 10 years.

Under the UCMJ, the punishment for an assault increases based on the status of the victim. Accordingly, assaults upon a commissioned, warrant, noncommissioned, or petty officer, or assaults upon a sentinel, lookout, or law enforcement officer in the execution of their duties, increase the potential maximum punishment.

FAQs About Article 128

Can a verbal threat constitute assault under Article 128?

Yes, a verbal threat can constitute assault under Article 128 if it creates a reasonable fear of immediate bodily harm in the victim and the person making the threat has the present ability to carry it out.

Can a single act result in multiple assault charges under Article 128?

Yes, a single act can result in multiple assault charges under Article 128 if it involves different victims or different degrees of harm. For example, if a service member physically attacks two individuals during the same incident, they may face separate assault charges for each victim.

Can a victim drop assault charges under Article 128?

In military justice proceedings, the decision to drop charges typically rests with the prosecuting authority rather than the victim. However, a victim's wishes may be taken into consideration by the prosecution.

Can I be charged with assault under both military law (UCMJ) and civilian law for the same incident?

It's possible to face charges under both military law (UCMJ) and civilian law for the same incident, particularly if the alleged offense occurred off-base or involved civilians. This is known as dual jurisdiction. However, the specifics can vary depending on the jurisdiction and circumstances of the case.

What is the process for reporting assault under Article 128?

Reporting assault under Article 128 typically involves notifying the appropriate military authorities, such as the victim's chain of command, military police, or the military's criminal investigative organization. The victim may also choose to report the assault through the unrestricted or restricted reporting options, which offer different levels of confidentiality and support services.

How does military jurisdiction impact the prosecution of assault charges under Article 128?

Military jurisdiction extends to service members regardless of their location, meaning they can be prosecuted for assault under Article 128 regardless of whether the offense occurred on a military installation, during deployment, or elsewhere. Additionally, military courts have jurisdiction over certain civilians accompanying the military in designated circumstances.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and experienced attorneys at MJA have defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including assault and battery.

We will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

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