ARTICLE 128 UCMJ Assault

Article 128 of the UCMJ criminalizes assault and related offenses. The page covers multiple distinct assault offenses, each with different elements, intent requirements, and defenses. Not all assault allegations are the same — a defense in one type may not apply in another. For domestic violence-related assault charges, see Article 128b.

Elements the Government Must Prove

1. The accused attempted or offered to do bodily harm

2. The attempt or offer was unlawful

3. The act was done with force or violence

No physical contact is required.

What “Bodily Harm” Means

• Any offensive touching of another, however slight

• Potential or actual injury is not required

Attempt-Type Assault

• Requires specific intent to cause bodily harm

• Requires an overt act (more than mere preparation)

• Victim does not need to be aware of the attempt

• Example: Swinging a fist intending to hit someone but missing, even if they never saw it

Offer-Type Assault

• No specific intent to injure required

• Focuses on whether the act created reasonable fear of immediate bodily harm

• Victim must perceive the threat

• Example: Swinging a fist where the other person sees it coming and reasonably fears being struck

What Is Not an Assault

• Mere preparation (e.g., picking up an object without attempting or offering to strike)

• Threatening words alone, without a menacing act

• Conduct where circumstances clearly negate intent to harm

• Example: Raising a stick while clearly stating you do not intend to strike

What Is Not a Defense to Simple Assault

• “It would not have worked anyway” — a failed or impossible attempt can still be assault

• “The victim backed away” — retreat does not negate assault if there was reasonable fear

• “I didn’t mean to scare them” — for offer-type assault, intent to frighten is not required

Elements the Government Must Prove

1. The accused did bodily harm to another person

2. The bodily harm was unlawful

3. The bodily harm was done with force or violence

What Makes It a Battery

• A battery occurs when an assault is completed by contact

• Physical injury is not required; even slight or indirect contact may qualify

• Examples: Pushing, grabbing, spitting; throwing an object that hits a person; causing harm indirectly (e.g., setting a dog on someone)

What Is Not a Battery

• Accidental contact without intent or culpable negligence

• Touching someone to get their attention or prevent injury

• Lawful force used appropriately (excessive force defeats this defense)

What Is Not a Defense

• “It didn’t hurt”

• “I barely touched them”

• “I didn’t mean to injure them”

Assault on an Officer (Commissioned, Warrant, NCO, or Petty Officer)

• Government must additionally prove the victim was an officer, warrant officer, NCO, or petty officer and that the accused knew the victim’s status

• Victim does not need to be senior in rank or in the execution of office

Assault on Law Enforcement, Sentinel, or Lookout

• Applies when victim was security police, military police, shore patrol, master at arms, other military or civilian law enforcement, or sentinel or lookout in execution of duty

• Knowledge of status required; may be proven circumstantially

Assault Consummated by Battery on a Child Under 16

• Applies only to battery, not simple assault

• Knowledge of age is not required

• Punishment is increased automatically

Assault With a Dangerous Weapon

• Government must prove: offer to do bodily harm, intent to do bodily harm, and use of a dangerous weapon

• Actual injury is not required

• “Dangerous weapon” includes: firearms (loaded or unloaded), knives, bottles, pipes, rocks, boiling water, drugs, hands, fists, feet, elbows, or teeth if used in a deadly manner

Assault Inflicting Substantial Bodily Harm

• Includes: temporary but substantial disfigurement; temporary but substantial loss or impairment of bodily function

• General-intent offense — government does not need to prove intent to cause that level of harm

Assault Inflicting Grievous Bodily Harm

• Includes: substantial risk of death; extreme physical pain; protracted disfigurement; protracted loss or impairment of bodily function

• Intent to cause grievous harm is not required

Aggravated Assault by Strangulation or Suffocation

• Elements: an assault occurred, committed by strangulation or suffocation, force was unlawful

• No visible injury required; no intent to kill required

• Can be committed intentionally, knowingly, or recklessly

• “Strangulation”: impeding breathing or blood flow by pressure on the neck

• “Suffocation”: blocking the mouth or nose

This category involves specific intent to commit another offense, including:

• Murder or voluntary manslaughter
• Rape or sexual assault (adult or child)
• Robbery
• Arson
• Burglary
• Kidnapping

Valid defenses may include:

• Self-defense or defense of others
• Lack of intent (where intent is required)
• Accident without culpable negligence
• Consent, in limited lawful contexts
• Excessive force by the alleged victim
• Credibility issues or false allegations

Self-defense is one of the most important and most misunderstood defenses in Article 128 assault cases. Not every fight qualifies — but many legitimate claims are mischaracterized.

Self-Defense in Assault Cases Involving Deadly Force

• Requires: (1) the accused reasonably apprehended death or grievous bodily harm was about to be inflicted wrongfully, and (2) the accused actually believed force was necessary to protect against death or grievous harm

• Objective test: Would a reasonable, prudent person in the accused’s position have believed death or grievous harm was imminent? Factors: relative size and strength, presence of weapons, number of attackers, location and ability to retreat. Does not consider intoxication, emotional instability, panic, or anger.

• Subjective test: Did the accused actually believe the force was necessary? May consider emotional state, intelligence, education, training and experience, stress or fear at the moment of force. The accused is not limited to “reasonable” force under this prong — only what the accused actually believed was necessary.

Self-Defense in Certain Aggravated Offer-Type Assaults

• Applies even without actual physical force if: the accused reasonably believed bodily harm was about to be inflicted wrongfully, and the accused offered force only to deter the attacker, without actually inflicting or attempting harm

• Commonly arises in: displaying a weapon to stop an attack; threatening force without using it

• Same reasonableness principles as deadly force cases apply

Self-Defense in Other Article 128 Assault Cases

• Applies for most other assault cases (simple assault, battery) if: (1) the accused reasonably apprehended wrongful bodily harm, (2) the accused believed force used was necessary, and (3) the force used was less than force likely to cause death or grievous harm

• Covers: bar or barracks fights, domestic disputes, training or workplace confrontations

Accidental Serious Injury During Lawful Self-Defense

• If the accused used lawful self-defense force but death or serious injury unintentionally resulted, protection may still apply

• Conditions: force must have been lawful self-defense and the injury must have been unintended and unexpected

When the Right to Self-Defense Is Lost

• The accused was the initial aggressor

• The accused engaged in mutual combat

• The accused provoked the attack

• Exception — Withdrawal in Good Faith: Right to self-defense can be restored if the accused clearly withdrew in good faith before the alleged offense occurred

• Important clarifications: Approaching someone verbally does not automatically make one the aggressor; failure to retreat (when lawfully present) does not eliminate self-defense; availability of retreat is only one factor in evaluating reasonableness

• Self-defense principles apply to defense of another

• It is a defense if: the accused acted to defend another person and used no more force than the person defended was legally entitled to use

• The risk: The accused acts at their own peril — higher risk if the person defended was actually the aggressor and not entitled to self-defense

• Frequently arises in: domestic disputes, group altercations, barracks incidents

Actual punishment depends on the forum — special or general court-martial — and jurisdictional caps. For a full comparison across forums, see court-martial punishments and sentencing.

Simple Assault

• General: No discharge, 3 months confinement, 2/3 forfeiture of pay for 3 months

• With firearm or dangerous weapon: Dishonorable discharge, 2 years confinement, total forfeitures

• With loaded firearm: Dishonorable discharge, 4 years confinement, total forfeitures

Assault Consummated by Battery

• Bad-conduct discharge, 6 months confinement, total forfeitures

Assault on an Officer

• Commissioned officer: Dishonorable discharge, 3 years confinement, total forfeitures

• Warrant officer (not in execution of office): Dishonorable discharge, 18 months confinement, total forfeitures

• NCO or petty officer (not in execution of office): Bad-conduct discharge, 6 months confinement, total forfeitures

Assault on Law Enforcement, Sentinel, or Lookout

• Dishonorable discharge, 3 years confinement, total forfeitures

Battery on a Child Under 16, Spouse, Intimate Partner, or Family Member

• Dishonorable discharge, 2 years confinement, total forfeitures

Aggravated Assault With a Dangerous Weapon

• Loaded firearm: Dishonorable discharge, 8 years confinement, total forfeitures

• Child under 16, spouse, intimate partner, or family member: Dishonorable discharge, 8 years confinement, total forfeitures

• Other: Dishonorable discharge, 3 years confinement, total forfeitures

Aggravated Assault Inflicting Substantial Bodily Harm

• Loaded firearm: Dishonorable discharge, 8 years confinement, total forfeitures

• Child under 16, spouse, intimate partner, or family member: Dishonorable discharge, 8 years confinement, total forfeitures

• Other: Dishonorable discharge, 3 years confinement, total forfeitures

Aggravated Assault Inflicting Grievous Bodily Harm

• Loaded firearm: Dishonorable discharge, 10 years confinement, total forfeitures

• Child under 16, spouse, intimate partner, or family member: Dishonorable discharge, 10 years confinement, total forfeitures

• Other: Dishonorable discharge or bad-conduct discharge, 5 years confinement, total forfeitures

Aggravated Assault by Strangulation or Suffocation

• Child under 16, spouse, intimate partner, or family member: Dishonorable discharge, 8 years confinement, total forfeitures

• Other: Dishonorable discharge, 3 years confinement, total forfeitures

Assault With Intent to Commit Other Serious Crimes

• Murder or rape: Dishonorable discharge, 20 years confinement, total forfeitures

• Voluntary manslaughter, robbery, arson, burglary, or kidnapping: Dishonorable discharge, 10 years confinement, total forfeitures

The Manual for Courts-Martial (MCM) assigns offense categories and recommended confinement ranges. These are non-mandatory — the sentencing authority may deviate only if justified, and the lesser maximum authorized punishment always controls.

Simple Assault

• General: Category 1 — 0 to 12 months

• With unloaded firearm: Category 2 — 1 to 36 months

Assault Consummated by Battery

• Category 1 — 0 to 12 months

Assault on an Officer

• Warrant officer (not in execution of office): Category 2 — 1 to 36 months

• NCO or petty officer (not in execution of office): Category 1 — 0 to 12 months

Battery on a Child Under 16

• Category 2 — 1 to 36 months

Aggravated Assault With a Dangerous Weapon

• Loaded firearm: Category 3 — 30 to 120 months

• Child under 16: Category 3 — 30 to 120 months

• Other: Category 2 — 1 to 36 months

Aggravated Assault Inflicting Substantial Bodily Harm

• Loaded firearm: Category 3 — 30 to 120 months

• Child under 16: Category 3 — 30 to 120 months

• Other: Category 2 — 1 to 36 months

Aggravated Assault Inflicting Grievous Bodily Harm

• Loaded firearm: Category 3 — 30 to 120 months

• Child under 16: Category 3 — 30 to 120 months

Aggravated Assault by Strangulation or Suffocation

• Child under 16: Category 3 — 30 to 120 months

• Other: Category 2 — 1 to 36 months

Assault With Intent to Commit Other Serious Crimes

• Murder or rape: Category 3 — 30 to 120 months

• Voluntary manslaughter, robbery, arson, burglary, or kidnapping: Category 2 to 3

Commanders and investigators often:

• Focus only on who was injured

• Ignore the objective vs. subjective standards

• Mislabel mutual confrontations

• Discount lawful escalation of force

A proper self-defense analysis under RCM 916(e) often changes the entire posture of an Article 128 case. For a guide to your rights as an accused service member, see The Military Accused: A Strategic Guide to Your Rights and Defense in 2026. For your rights during questioning, see Article 31 Rights: A Tactical Guide. For general court-martial context, see Court Martial Meaning: The High-Stakes Reality of Military Justice.