UCMJ Article 128 Assault Lawyers

The UCMJ Article 128 Assault lawyers at Brett O’Brien Law defend servicemembers facing courts-martial for Article 128 offenses and will ensure that all avenues of defense are pursued in your case.

Military crimes that involve attempts or the completed act of bringing unlawful violence upon another person are charged as assault under Article 128 of the Uniform Code of Military Justice (UCMJ). Sentencing for an assault conviction will depend on several factors, such as the circumstances of the offense itself, the status or age of the victim, whether or not a weapon was involved, and the significance of the injuries suffered by the victim.

An assault conviction can result in the end of your military career and the potential for incarceration. Depending on the nature of the assault conviction, sentences can range anywhere from a maximum of three months of confinement and forfeiture of 2/3 of pay for three months (for simple assault) to a dishonorable discharge and confinement for up to ten years (for aggravated assault).

In addition, assault convictions can result in your military benefits and retirement being taken from you, along with your healthcare and salary.

Statutory Text of UCMJ Article 128 Assault

The text of Article 128 of the UCMJ provides, in full, as follows:

(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 Weapon;

(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 the Offense for UCMJ Article 128 Assault

There are various offenses covered by Article 128, each with its own separate set of elements that the prosecution must prove beyond a reasonable doubt.  They are as follows:

(1) Simple Assault

(a) The accused either “attempted” or “offered” to do “bodily harm” to the victim;

(b) The attempt or offer was done “unlawfully;” and

(c) The attempt or offer was done with “force” or “violence.”

(2) Assault Consummated by a Battery

(a) The accused actually did “bodily harm” to the victim;

(b) The bodily harm was done “unlawfully;” and

(c) The bodily harm was done with “force” or “violence.”

(3) Aggravated Assault (with a dangerous weapon)

(a) The accused offered to do “bodily harm” to the victim;

(b) The offer was made with the intent to do bodily harm; and

(c) The accused did so with a dangerous weapon.

(4) Aggravated Assault (substantial or grievous bodily harm inflicted)

(a) The accused assaulted the victim; and

(b) Either “substantial bodily harm” or “grievous bodily harm” was inflicted.

Bodily harm” means an offensive touching of another, however slight.

Substantial bodily harm” means a bodily injury that involves either: (1) a temporary, but substantial disfigurement; or (2) a temporary but substantial loss or impairment of function of any bodily member, organ, or mental faculty.

Grievous bodily harm” means a bodily injury that involved either: (1) a substantial risk of death; (2) extreme physical pain; (3) protracted and obvious disfigurement; or (4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Increased punishments are applicable if:

  • The victim is a commissioned, warrant, noncommissioned, or petty officer;
  • The victim is a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties.
  • The victim is a child under 16 years and an actual battery occured.

In addition, enhanced penalties are also applicable when, the accused, at the time of the assault, intended to kill or commit rape, sexual assault, robbery, arson, burglary, or kidnapping.

Potential Punishments for Violating UCMJ Article 128 Assault

The maximum punishment that an assault conviction will carry will depend on the classification of the assault.  For example, the maximum punishment for some of the most frequently encountered crimes are as follows:

  • Simple assault – confinement for 3 months and 2/3 pay forfeiture for three months.
  • Simple assault with an unloaded firearm – discharge, forfeiture of all pay and allowances and confinement for 3 years.
  • Assault consummated by battery – bad conduct discharge; forfeiture of all pay and allowances; confinement for 3 years.
  • Assault upon a commissioned officer – dishonorable discharge; forfeiture of all pay and allowances; confinement for 3 years.
  • Assault consummated by battery upon a child under 16 – forfeiture of all pay and allowances; confinement for 2 years.
  • Aggravated assault with a dangerous weapon – dishonorable discharge; forfeiture of all pay/allowances – total forfeitures; confinement of 3-8 years.
  • Aggravated assault inflicting substantial bodily harm – dishonorable discharge; forfeiture of all pay/allowances; confinement of 3-8 years.
  • Aggravated assault inflicting grievous bodily harm – dishonorable discharge; forfeiture of all pay/allowances; confinement of 5-10 years.
  • Aggravated assault with intent to commit murder, rape, or rape of a child – dishonorable discharge; forfeiture of all pay/allowances; confinement of 20 years.
  • Aggravated assault with intent to commit voluntary manslaughter – robbery, arson, burglary, and kidnapping: dishonorable discharge; forfeiture of all pay/allowances; confinement of 10 years.

Defenses to UCMJ Article 128 Assault

Assault is a complex crime with many possible defenses, strategies, and tactics.  The events leading up to and during the assault, the extent of the injuries, the status of the victim, and the intent of the accused must all be thoroughly analyzed and investigated.

For example, your Article 128 defense lawyer should consider:

  • The circumstances leading up to the assault. What started the fight? Were there any victims? Was the fight planned or spontaneous? Were the accused or the victim drinking? Could there be any misidentification issues?
  • The extent of the injuries. How badly injured was the victim? Do medical reports corroborate the injuries claimed? What is the victim’s prognosis?
  • The presence of weapons. What type of weapon was involved? Has it been recovered? Was the weapon being used in self defense?
  • The intent of the accused. Does the accused know the victim? Have they had altercations in the past? Did the victim threaten the accused? Did the accused act in self defense? Did the accused know that the victim was a military officer, a sentinel, or a law enforcement officer?

Defenses to your assault case will depend on the specific offense charged. For example, consider the elements of aggravated assault. Aggravated assault can come in two forms: (1) assault with a dangerous weapon; or (2) assault that inflicts substantial or grievous bodily injury. To be guilty of the first type, the accused must have specifically intended to do bodily harm while using a weapon. But to be guilty of the second type, the accused only must have generally intended to assault another person; it does not require a specific intent to cause substantial bodily harm.  Thus, it is imperative that your Article 128 defense lawyer have a thorough understanding of the nuances involved in this area of law.

For example, the following situations would not amount to assault under Article 128:

  • Mere preparation – Mere preparation that does not amount to some overt act, such as picking up a rock without any attempt or offer to throw it, does not constitute an assault.
  • Threatening words – The use of threatening words alone does not constitute an assault.
  • Circumstances negating intent to harm – If the situation known to the victim clearly negates that the accused has an intent to do bodily harm, then there is no assault. For example, if the accused raises a bat and shakes it at the victim, stating: “If you weren’t a woman, I would hit you,” the accused has not committed an assault. On the other hand, if the accused threatens to inflict bodily injury on the victim if the victim does not comply with a demand that the accused has no right to make, would constitute an assault. Thus, if the accused threatens to shoot the victim if he doesn’t hand over his watch, the accused has committed an assault.

Frequently Asked Questions Regarding UCMJ Article 128 Assault

What is the difference between an assault and a battery?

Article 128 covers both assault and battery.  While assault and battery are closely related, they are not the same.  The distinction is usually whether or not contact occurs.

An assault is defined as “an unlawful attempt or offer, made with force or violence, to do bodily harm to another, whether or not the attempt or offer is consummated.” A battery, on the other hand, is defined as “an assault in which the attempt or offer to do bodily harm is consummated by the infliction of that harm.”

In other words, assault refers to the act which causes the victim to apprehend imminent physical harm, while battery refers to the actual act causing the physical harm.  Thus, while a battery always also involves an assault, an assault does not always involve a battery.

The force that is required to be applied in order to turn an assault into an assault consummated by a battery can be either direct or indirect.  For example, a battery would take place if a person spits on someone, sets a dog on another person, pushes a third person against the victim, or cuts the victim’s clothes even without touching the victim. Moreover, if the victim consents to the use of force against them, and the accused uses more force than is necessary, then the accused will have committed a battery.

What is the difference between an “attempt” and an “offer?”

An attempt requires the accused to have taken some overt act with the intent to commit bodily harm, which ultimately fails.  An attempt can occur even if the victim is unaware of the incident.  With an offer, on the other hand, the accused takes some overt act of violence, whether intentionally or even just negligently, that creates in the mind of the victim a reasonable apprehension of receiving bodily harm.

In simplest terms, with an attempt we are focused on the accused’s intent, regardless of whether or not the victim actually feared bodily harm, while with an offer we are focused on whether the victim reasonably feared harm, regardless of whether or not the accused intended to inflict bodily harm.

Examples

  • Attempt, but not an Offer. The accused swings a fist at the victim, intended to punch him, but misses. The victim does not see the blow and is not placed in fear.
  • Offer, but not an Attempt. The accused swings a fist at the victim simply to frighten him, not intending to hit him. The victim sees the blow coming and is put in apprehension of being struck.
  • Both an Attempt and an Offer. The accused swings a fist at the victim, intending to punch him. The victim sees the blow coming and is put in apprehension of being struck.
  • Neither an Attempt or an Offer. The accused swings a fist at the victim, simply intending to frighten him, not intending to hit him. The victim does not see the blow and is not placed in fear.

Can My Charges Be Reduced from Aggravated Assault to Simple Assault?

Depending on the nature of the assault and the circumstances surrounding it, it may be possible to have an  aggravated assault charge lowered to a simple assault charge.  Our first priority, however, would be to have the charges dismissed altogether, and to have you found not guilty of any charges.  Sometimes, this outcome is just not possible.  If that is the case, then we will work to obtain the best possible outcome, which may entail a reduction in the original charges.

Nationwide UCMJ Article 128 Assault Lawyers

The UCMJ Article 128 assault lawyers at Brett O’Brien Law have been defending service members accused of assault crimes for years. If you are charged with violating Article 128, contact an experienced military defense lawyer today.  At Brett O’Brien Law, we  have defended servicemembers facing courts-martial for Article 128 offenses and we will ensure that all avenues of defense are pursued in your case.

Moreover, our military defense lawyers are here to assist you, regardless of where you are currently located.

Call us today at (202) 600-4996 for a free consultation.

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