UCMJ Article 128 Assault

UCMJ Article 128 Assault Attorney

An important part of the Uniform Code of Military Justice (UCMJ), Article 128 addresses offenses of assault and related conduct within a military context. Assault charges in the military, just as in civilian life, can carry serious consequences. In the military, penalties for assault can include confinement (comparable to the concept of civilian jail) or even discharge from service.

Just like a civilian accused of assault, an active service member facing assault charges under UCMJ 128 may need the services of an experienced attorney. Whether your case involves simple assault, aggravated assault, battery, or other charges related to bodily harm, The Law Center P.C. can help you strategize and come up with a solid defense to clear your name or reduce the likelihood of discharge.

Types of Assault Charges Under UCMJ Article 128

Assault cases can be very different from one to the next, and the law–including military law–has different categories and classifications of assault to address this.

Under UCMJ article 128, there are three main categories of assault:

• Assault – A simple assault charge. Example: two service members have an argument on base wherein one party takes a swing at the other in an attempt to punch them. The party who initiated the altercation could be charged with simple assault, whether or not the punch landed.
• Aggravated Assault – An assault with extenuating factors. A common example would be when a deadly weapon, like a blade or firearm, is used during the incident. Any assault involving strangulation is also automatically considered aggravated.
• Assault with Intent to Commit Specified Offenses – In the civilian world, an assault committed with the intent to commit another crime–for example, an armed robbery or attempted murder–would likely be charged as aggravated assault, depending on the particular laws and statutes of the state where the crime occurred. Under the UCMJ, these sorts of assaults have their own distinct category: Assault with Intent to Commit Specified Offenses. The “specified offenses” under UCMJ article 128 include:
  • Murder
  • Manslaughter
  • Sexual Assault
  • Robbery/Burglary
  • Arson
  • Kidnapping
  • And various specified crimes against children

There are additionally specific “elements” defined under UCMJ Article 128 that further help to categorize assault charges. The inclusion or absence of these elements in a case will inform how the charge is pursued. Some of the different types of assault a service member could be charged with when all the elements have been considered include:

• Simple Assault – The accused has attempted (or explicitly threatened) bodily harm upon another, specific person (i.e., the victim) through the use of “unlawful force or violence.”
• Assault by Battery – When physical harm is successfully carried out against the victim, rather than just attempted or threatened, that meets the definition of “assault consummated by battery.”
• Assault Against a Protected Class of Victim – In the civilian world, a legal “protected class” is usually defined in reference to labor and housing laws that do not allow discrimination based on gender, race, etc. The protected classes defined under UCMJ article 128 are quite different, however. This charge carries increased punishments for any assault committed against:
  • Any officer (commissioned, warrant, NCO, or petty)
  • Anyone actively on lookout or sentinel duty
  • Anyone engaged in law enforcement duties
  • A child under 16 years of age
  • A spouse or intimate partner of the perpetrator
  • An immediate family member of the perpetrator
• Assault with Aggravating Factors – An assault with a weapon or one resulting in serious bodily harm can be charged as aggravated assault.
• Assault with Intent to Commit Another Criminal Offense – Committing assault in the course of carrying out another crime can carry additional penalties.

Penalties Under UCMJ Article 128

As you might imagine given all the different classifications of assault under UCMJ article 128, there are a range of different punishments on the books for these different offenses. Some of them are as follows:

• Simple Assault – Maximum punishment of 3 months confinement and forfeiture of 2/3 pay for a 3-month period. If an unloaded firearm was brandished as a threat during the simple assault, however, the maximum confinement period is increased to 3 years rather than 3 months. If the firearm was loaded, the charge becomes aggravated assault, which carries even stiffer penalties.
• Aggravated Assault – The exact penalties for aggravated assault will vary quite a bit depending on the specifics of the aggravating factors. This large variance in sentencing makes a lot of sense when you consider that brandishing a pocket knife as a threat during a fistfight and non-fatally shooting someone through the torso could both meet the definition of aggravated assault. In the most extreme cases, punishments for aggravated assault under the UCMJ can top out at 10 years of confinement (and forfeited pay).
• Battery – The penalties for battery (an assault resulting in actual bodily harm) will vary quite a bit depending on the circumstances of the case. For example, an attack on a fellow enlisted service member while not on active duty would likely carry a maximum penalty of 6 months confinement, forfeited pay, and a bad conduct discharge. Meanwhile, battering a commissioned officer could result in 3 years of confinement, the total forfeiture of all pay and benefits, and a dishonorable discharge.
• Assault with Intent to Commit Specified Offenses – Once again, the exact punishment will vary with the specifics of the case and what other offenses were committed or attempted. When sex crimes against a child are involved, for example, the perpetrator can face up to 20 years of confinement along with the expected forfeiture in pay and dishonorable discharge.

FAQs

Being involved in assault charges can be extremely stressful, and even more so if you lack the background and training to understand the subtle differences between military and civilian legal systems. If your questions are not answered by the FAQ below, please contact The Law Center P.C. to set up a personalized consultation.

Q: What Is Article 128 of the UCMJ?

A: Article 128 of the Uniform Code of Military Justice (UCMJ) pertains to the crime of assault in the context of U.S. military service personnel. Article 128 includes definitions of assault, different classifications, and a framework for handing down punishments to military members deemed guilty of assault.

Q: What Is the Maximum Possible Punishment for Article 128 Assault?

A: The maximum punishment for an Article 128 charge will vary quite a bit depending on the specifics of the case. In the most extreme cases of Assault with Intent to Commit Specified Offenses that involve sex crimes against children, the punishment can be up to 20 years of confinement in addition to forfeiture of pay and dishonorable discharge from the service. In simple assault cases, the consequences will be much lighter, and it may be possible to avoid discharge.

Q: Is Article 128 UCMJ a Felony?

A: Many types of assault charges are felonies in various states throughout the US. However, the civilian criminal courts that hand down felony charges and the military courts that try active service members are completely different in nature. The terms “felony” and “misdemeanor” do not actually apply to the UCMJ.

Q: What Is the Typical Punishment for Article 128?

A: Because the punishments handed down will be very different from case to case, depending on the severity of the infraction and other relevant circumstances, there is no “typical” punishment for an Article 128 conviction. A simple assault may result in a short period of confinement while more serious incidents can result in being discharged dishonorably in addition to losing all pay and benefits.

Safeguard Your Military Career with Powerful Legal Representation from The Law Center P.C.

If you are a service member facing assault charges under UCMJ Article 128, don’t risk your future by entering into the military court process without help. Contact The Law Center P.C. today to set up a consultation with our seasoned military defense attorneys. We will leverage our in-depth knowledge of military law as we work aggressively to protect your rights and ensure your military career stays on the right track. Whatever your circumstances, The Law Center P.C. can help you develop and implement a comprehensive defense strategy to mitigate the consequences of UCMJ Article 128 charges