Article 128 UCMJ – Assault Charges in the Military

What Is Article 128?

Article 128 of the Uniform Code of Military Justice (UCMJ) addresses a broad spectrum of assault-related offenses. It criminalizes everything from threats of violence and shoving someone to serious battery involving weapons or serious bodily injury. Even if the alleged victim wasn’t injured, you can still be convicted under this article if the prosecution can prove you attempted or threatened unlawful force.

The military treats all types of violence—especially within units or during deployment—as serious threats to discipline, order, and morale. A single accusation of assault can lead to an investigation, confinement, court-martial, administrative separation, and loss of benefits. And depending on the facts, your case could quickly escalate from a minor scuffle to a felony-level prosecution.

Types of Assault Under Article 128

• Simple Assault: Attempt or offer with unlawful force or violence. No contact is necessary.
• Assault Consummated by Battery: Physical contact occurred—punch, grab, slap, etc.
• Aggravated Assault: Assault with a weapon or means likely to cause death or serious bodily harm.
• Assault on a Superior Commissioned Officer: A uniquely serious charge that can result in harsher punishment due to military hierarchy.
• Assault on a Sentinel or Guard: Protected status of the victim enhances the severity.
• Domestic Violence: When the assault involves a spouse, intimate partner, or family member.

Penalties for Article 128 Violations

Punishments vary based on the type of assault and other aggravating factors:

• Confinement (up to 10 years or more for aggravated cases)
• Dishonorable or bad-conduct discharge
• Reduction in rank and forfeiture of pay
• Loss of retirement, GI Bill, and VA benefits

Even “minor” assault cases can result in separation from the military and a permanent mark on your record.

What Triggers Assault Allegations?

• Fistfights in the barracks or on deployment
• Arguments escalating during off-duty drinking
• Disputes with superiors or junior personnel
• Domestic incidents or emotional outbursts with a spouse or partner
• Shoving or grabbing someone during a verbal confrontation

Even if the incident seemed minor to you at the time, the military may treat it as a serious breach of discipline.

Common Defenses to Article 128 Charges

• Self-defense: You reasonably believed force was necessary to prevent harm to yourself or others.
• Lack of intent: Any contact was accidental or unintentional.
• Mutual combat: Both parties engaged willingly in a fight.
• Fabrication: The alleged victim exaggerated or lied.
• No corroboration: There are no credible witnesses or evidence to support the accusation.

Witness testimony, medical reports, digital evidence, and your own demeanor can make or break your defense.

Real Case Example

Scenario: A Staff Sergeant was accused of assaulting a junior soldier during a field exercise. The alleged victim claimed the NCO struck him in the chest with a rifle butt during an argument. No injuries were documented.

Defense: The accused denied intent to harm and cited training pressure. Witnesses testified that the alleged contact was unintentional. The court-martial panel returned a verdict of not guilty, and the NCO returned to duty with no adverse actions.

How to Protect Yourself If Accused

• Remain silent. Do not speak to investigators or command without legal counsel.
• Write down everything you remember while it’s fresh.
• Preserve any texts, photos, videos, or audio recordings.
• Identify witnesses who can testify about your behavior, state of mind, or what they saw.
• Hire a civilian defense lawyer with court-martial experience as soon as possible.

Command Bias and Overcharging

In many units, leadership responds to even small altercations with aggressive action to preserve unit cohesion or avoid scrutiny. As a result, service members are sometimes overcharged under Article 128 for minor events. For example, pushing someone could be escalated to “assault consummated by battery” or “aggravated assault” if a weapon is present—even if it wasn’t used.

Challenging the severity of the charge—and the command’s interpretation of the facts—is a vital part of your defense strategy.

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