UCMJ Article 128 – Assault

UCMJ Article 128 criminalizes assault, which is the unlawful attempt or offer with force or violence to do bodily harm to another person. Assault includes both attempts to inflict injury and threats accompanied by the ability to carry them out. Because discipline and safety are essential in the military, assault in any form is treated as a serious offense.

The article recognizes several levels of assault, from simple assault to aggravated assault with a dangerous weapon or means likely to produce death or grievous bodily harm. It also covers assaults consummated by battery, where physical contact actually occurs.

Key Elements

Simple assault:

  1. The accused attempted or offered to do bodily harm to another person.
  2. The attempt or offer was unlawful.
  3. The act was done with force or violence.

Assault consummated by battery:

  1. The accused did bodily harm to another person.
  2. The bodily harm was unlawful.
  3. The act was intentional.

Aggravated assault:

  1. The accused committed assault with a dangerous weapon or other means likely to produce death or grievous bodily harm.
  2. The act was unlawful and intentional.

Scope and Application

Article 128 applies to a wide range of misconduct:

  • Raising a fist and threatening to hit another service member.
  • Striking or pushing another person unlawfully.
  • Attacking someone with a weapon or using means likely to cause serious harm.
  • Assaults in garrison, deployed settings, or off duty that still affect discipline.

The law does not punish consensual combat sports or lawful use of force, such as training or self-defense.

Punishment

  • Simple assault: Confinement up to 3 months, forfeiture of pay, and reduction in grade.
  • Assault consummated by battery: Confinement up to 6 months, forfeiture of pay, and reduction in grade.
  • Aggravated assault with a dangerous weapon or likely to cause grievous bodily harm: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to 10 years.

Defenses

Possible defenses include:

  • Self-defense: If the accused acted to protect themselves or others from unlawful force.
  • Consent: In limited circumstances, such as sports or training.
  • Accident: If the harmful contact occurred unintentionally.
  • Lack of present ability: For simple assault, if the accused lacked the ability to carry out the threat.

Examples

If a soldier swings a fist at another but misses, that is simple assault. If a Marine punches a fellow service member during an argument, it is assault consummated by battery. If an airman attacks someone with a knife, it is aggravated assault. By contrast, if two service members spar during authorized martial arts training, that is not unlawful assault.

Conclusion

Article 128 ensures accountability for violent or threatening conduct that disrupts military order. By distinguishing between simple, consummated, and aggravated assaults, it provides proportional punishment based on the seriousness of the act. Enforcement of this article protects service members, reinforces discipline, and maintains trust within the armed forces.

Frequently Asked Questions

1. What is the difference between simple assault and assault consummated by battery?
Simple assault involves an unlawful attempt or offer to cause harm without actual contact. Assault consummated by battery requires that bodily harm occurred through physical contact. The key difference is whether the act stopped at threat or attempt, or whether harm was actually inflicted. Both are punishable under Article 128.

2. How is aggravated assault defined in the UCMJ?
Aggravated assault involves using a dangerous weapon or means likely to produce death or grievous bodily harm. Examples include attacks with knives, firearms, or blunt instruments. It also covers actions like choking or other methods that can cause severe injury. The seriousness of the weapon or method distinguishes it from lesser assaults.

3. What punishments are possible for aggravated assault?
The maximum punishment includes dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to 10 years. This reflects the life-threatening nature of aggravated assault. Lesser sentences may apply depending on circumstances, but penalties are always severe for assaults involving dangerous weapons.

4. Can self-defense excuse an assault?
Yes, if the accused reasonably believed force was necessary to protect themselves or others from imminent unlawful harm. The response must be proportional to the threat. Excessive force may defeat the defense. Courts evaluate context, immediacy, and reasonableness when deciding if self-defense applies.

5. Does Article 128 cover threats made without contact?
Yes. A threat accompanied by the apparent ability to carry it out qualifies as simple assault. For example, raising a weapon at someone may be assault even if no injury occurs. The law punishes the intimidation itself because of its disruptive effect on discipline.

6. What if the accused did not actually intend to harm the victim?
Intent to injure is not always required. For simple assault, the unlawful offer of force is enough if a reasonable person would believe harm was possible. For battery, intentional physical contact that causes harm is sufficient. Recklessness or negligence may also lead to liability.

7. How does Article 128 relate to Article 134?
Article 128 covers physical assault specifically, while Article 134 punishes disorderly conduct or threats not otherwise classified. Assault charges fall under Article 128, but related misconduct may also be charged under Article 134. Together, they provide comprehensive coverage of violent behavior.

8. Does Article 128 apply in combat zones?
Yes. While lawful combat actions are excluded, unlawful assaults against fellow service members, civilians, or detainees may be charged. Even in high-stress environments, discipline must be preserved. Assaults in combat settings are treated seriously because of their impact on cohesion.

9. Can mutual fighting be punished under Article 128?
Yes. Even if both parties agree to fight, the conduct may still be unlawful if it disrupts order or results in serious injury. Consent is not always a defense. Commanders may also charge disorderly conduct or other related offenses.

10. Why is Article 128 important for military discipline?
Because it deters violence within the ranks and protects individuals from unlawful harm. Assault damages morale, trust, and mission effectiveness. By punishing all forms of assault, the article enforces discipline and fosters a safe environment for service members. It is a cornerstone of good order and accountability.

Sources

  • Uniform Code of Military Justice, 10 U.S.C. § 928, Article 128
  • Manual for Courts-Martial, United States (2024 edition)
  • Army Regulation 27-10, Military Justice
  • Navy JAGMAN (Judge Advocate General’s Manual) § 0160
  • Air Force Instruction 51-201, Administration of Military Justice
  • Court of Appeals for the Armed Forces, United States v. Johnson, 54 M.J. 67 (2000)
  • Military Attorney Joseph L. Jordan, Articles of the UCMJ web page

This content is for informational purposes only. If you are facing issues related to Article 128 or any other UCMJ provision, you should consult a qualified military attorney.

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