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Article 128 UCMJ Aggravated Assault Dangerous Weapon

Note: This law applies only to Article 128 UCMJ Aggravated Assault Dangerous Weapon offenses committed on and after 1 January 2019.

What is Article 128 UCMJ Aggravated Assault Dangerous Weapon?

Article 128 UCMJ Aggravated Assault Dangerous WeaponArticle 128 of the UCMJ addresses aggravated assault with a dangerous weapon, which involves intentionally inflicting or attempting to inflict bodily harm using a weapon capable of causing death or serious injury. This severe charge can result in significant penalties, including confinement, dishonorable discharge, and forfeiture of pay.

Those accused of aggravated assault with a dangerous weapon should seek the best military defense lawyers to navigate the complexities of their case. Court martial lawyers play a crucial role in building a robust defense, challenging the prosecution’s evidence, and protecting the rights of the accused.

Given the potential for severe consequences, engaging experienced court martial lawyers, such as those at Gonzalez & Waddington, is essential. They possess a deep understanding of military law and can provide comprehensive legal representation to achieve the best possible outcome for the accused.

Note: The maximum and minimum punishments for Article 128 UCMJ Aggravated Assault Dangerous Weapon vary depending on the date of the offense.

What are the types of Article 128 UCMJ Aggravated Assault Dangerous Weapon?

  1. Article 128 UCMJ Aggravated Assault Dangerous Weapon
  2. Article 128 UCMJ Aggravated Assault Dangerous Weapon With a loaded firearm
  3. Article 128 UCMJ Aggravated Assault Dangerous Weapon Committed upon a child under the age of 16 years

What are the Elements of Article 128 UCMJ Aggravated Assault Dangerous Weapon?

  1. That, (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by offering to do bodily harm to him/her;
  2. That the accused did so by (state the manner alleged) with a certain weapon, to wit: (state the weapon alleged).
  3. That the accused intended to do bodily harm; and
  4. That the weapon was a dangerous weapon.

What are the Elements of Article 128 UCMJ Aggravated Assault Dangerous Weapon, a Loaded Firearm?

  1. That, (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by offering to do bodily harm to him/her;
  2. That the accused did so by (state the manner alleged) with a certain weapon, to wit: (state the weapon alleged).
  3. That the accused intended to do bodily harm;
  4. That the weapon was a dangerous weapon; and
  5. That the weapon was a loaded firearm.

What are the Elements of Article 128 UCMJ Aggravated Assault Dangerous Weapon, Committed upon a child under the age of 16 years?

  1. That, (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by offering to do bodily harm to him/her;
  2. That the accused did so by (state the manner alleged) with a certain weapon, to wit: (state the weapon alleged).
  3. That the accused intended to do bodily harm;
  4. That the weapon was a dangerous weapon; and
  5. That, at the time, (state the name of the alleged victim) was a child under the age of 16 years.

What is the Maximum Punishment for Article 128 UCMJ Aggravated Assault Dangerous Weapon?

For offenses committed between 1 January 2019 and 27 December 2023:

  • 3 Years of Confinement
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1

For offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128 UCMJ Aggravated Assault Dangerous Weapon is a Category 2 Offense – Confinement from 1-36 months (1 month to 3 years)
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1
  • Note: The Military Judge MAY impose a period of confinement less than the jurisdictional maximum period of confinement upon finding specific facts that warrant such a sentence. Manual for Courts-Martial, United States (2024 ed.), Appendix 12B-C

What is the Maximum Punishment for Article 128 UCMJ Aggravated Assault Dangerous Weapon (With a loaded firearm)?

For offenses committed between 1 January 2019 and 27 December 2023:

  • 8 Years of Confinement
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1

For offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128 UCMJ Aggravated Assault Dangerous Weapon With a loaded firearm is a Category 3 Offense – Confinement from 30-120 months (2 years and 6 months to 10 years)
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1
  • Note: The Military Judge MAY impose a period of confinement less than the jurisdictional maximum period of confinement upon finding specific facts that warrant such a sentence. Manual for Courts-Martial, United States (2024 ed.), Appendix 12B-C

What is the Maximum Punishment for Article 128 UCMJ Aggravated Assault Dangerous Weapon Committed upon a child under the age of 16 years?

For Article 128 UCMJ Aggravated Assault Dangerous Weapon offenses committed between 1 January 2019 and 27 December 2023:

  • 5 Years of Confinement
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1

For Article 128 UCMJ Aggravated Assault Dangerous Weapon offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128 UCMJ Aggravated Assault Dangerous Weapon Committed upon a child under the age of 16 years is a Category 3 Offense – Confinement from 30-120 months (2 years and 6 months to 10 years)
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1
  • Note: The Military Judge MAY impose a period of confinement less than the jurisdictional maximum period of confinement upon finding specific facts that warrant such a sentence.

Combined UCMJ Maximum Punishment Charts

Sample Specification for Article 128 UCMJ Aggravated Assault Dangerous Weapon

In that PVT Dane Kirkland, US Army, did, at or near Pittsburgh, Pennsylvania, on or about 15 May 2025, with the intent to inflict bodily harm, commit an assault upon Billy Bookeeper by shooting at him with a dangerous weapon, to wit: a loaded firearm.

Model Specification for Article 128 UCMJ Aggravated Assault Dangerous Weapon

In that __________ (personal jurisdiction data), did, (at/on board location), on or about __________, with the intent to inflict bodily harm, commit an assault upon __________ (a child under the age of 16 years) by (shooting) (pointing) (striking) (cutting) (__________) (at (him) (her)) with a dangerous weapon, to wit: a (loaded firearm) (pickax) (bayonet) (club) (__________).

What are the Definitions for Article 128 UCMJ Aggravated Assault Dangerous Weapon?

Article 128 UCMJ Aggravated Assault Dangerous Weapon military defense lawyersAn “assault” under Article 128 UCMJ Aggravated Assault Dangerous Weapon is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated.

An “offer to do bodily harm” under Article 128 UCMJ Aggravated Assault Dangerous Weapon is an unlawful demonstration of violence by an intentional act or omission, which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm. (The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault since the combination constitutes a demonstration of violence.)

“Bodily harm” under Article 128 UCMJ Aggravated Assault Dangerous Weapon means the offensive touching of another, however slight. Bodily harm doesn’t need to be inflicted. However, the accused must have intended to do bodily harm.

Intent to do bodily harm may be proved by circumstantial evidence. When bodily harm has been inflicted using intentionally using force in a manner capable of achieving that result, it may be inferred that the bodily harm was intended.

An offer to do bodily harm is “unlawful” under Article 128 UCMJ Aggravated Assault Dangerous Weapon if done without legal justification or excuse and without the lawful consent of the victim.

A weapon is a “dangerous weapon” under Article 128 UCMJ Aggravated Assault Dangerous Weapon when used in a manner capable of inflicting death or grievous bodily harm. What constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to kill or inflict grievous bodily harm.

“Grievous bodily harm” means a bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Loaded firearm alleged and Article 128 UCMJ Aggravated Assault Dangerous Weapon

If a loaded firearm is alleged, the below instruction may be appropriate.

“Firearm” under Article 128 UCMJ Aggravated Assault Dangerous Weapon means any weapon that is designed to or may be readily converted to expel any projectile by the action of an explosive. (A fully functional revolver with an automatic rotating cylinder is a loaded weapon if there is a round of live ammunition in any chamber.) (A functional (clip) (magazine) fed weapon is a loaded weapon if a (clip) (magazine) containing a round of live ammunition has been inserted into it, regardless of whether there is a round in the chamber.)

The accused’s knowledge of the child’s age and Article 128 UCMJ Aggravated Assault Dangerous Weapon

When the alleged victim is a child under the age of 16 years, provide the following instruction: Knowledge that the person assaulted was under 16 years of age is not an element of this offense.

The accused’s belief that (state the name of the alleged victim) was (____ years old) (16 years or older) is not a defense to this offense.

Consent as a defense to Article 128 UCMJ Aggravated Assault Dangerous Weapon

Under certain circumstances, consent may be a defense to simple assault or assault. See US v. Arab, 55 M.J. 508 (A. Ct. Crim. App. 2001). Consent is not generally a defense to aggravated assault. See US v. Bygrave, 46 M.J. 491 (CAAF 1997). However, even in aggravated assault cases, military judges must carefully examine the facts and law to determine whether consent is a possible defense. If the judge determines that consent is not a defense, the following instruction may be given, if necessary.

A victim may not lawfully consent to an assault with a dangerous weapon.

Consent is not a defense to Article 128 UCMJ Aggravated Assault Dangerous Weapon.

Article 128 UCMJ Aggravated Assault Dangerous Weapon Military Defense Lawyers

Background of Article 128 UCMJ Aggravated Assault Dangerous Weapon

Article 128 of the Uniform Code of Military Justice (UCMJ) covers assault offenses, including aggravated assault. Aggravated assault with a dangerous weapon is a more severe form of assault that involves the use of a weapon or other means likely to produce death or grievous bodily harm. This article addresses violent behaviors that pose a significant threat to individuals and military order.

Basics of Article 128 UCMJ Aggravated Assault Dangerous Weapon

To secure a conviction for aggravated assault with a dangerous weapon under Article 128, the prosecution must prove the following elements beyond a reasonable doubt:

  • Assault: The accused committed an assault, which means an attempt or offer with unlawful force or violence to do bodily harm to another person.
  • Dangerous Weapon: The assault was committed with a dangerous weapon or other means likely to produce death or grievous bodily harm.
  • Intent: The accused had the specific intent to inflict bodily harm.

Collateral Consequences of Article 128 UCMJ Aggravated Assault Dangerous Weapon Conviction

A conviction for aggravated assault with a dangerous weapon can have numerous collateral consequences, including:

  • Difficulty obtaining civilian employment due to the nature of the conviction and any resulting discharge status
  • Loss of military benefits, including retirement pay, VA benefits, and healthcare
  • Significant damage to personal and professional reputation
  • Potential civil lawsuits from the victim for damages

Purpose of Article 128 UCMJ Aggravated Assault Dangerous Weapon

The primary purpose of penalizing aggravated assault with a dangerous weapon under Article 128 is maintaining good order and discipline within the military. Such assaults pose a serious threat to the safety and well-being of service members and undermine unit cohesion. By criminalizing such behavior, the military aims to:

  • Protect service members from serious harm or death
  • Ensure a safe and disciplined working environment
  • Deter potential offenders by highlighting the severe consequences of such behavior
  • Uphold the standards of conduct necessary for military readiness and effectiveness

If you are suspected or accused of Article 128 UCMJ Aggravated Assault Dangerous Weapon, speak with one of our experienced military court martial lawyers to discuss your case.

Examples of Article 128 UCMJ Aggravated Assault Dangerous Weapon:

  • Knife Attack: A service member attacks another with a knife, causing injury.
  • Gun Threat: A service member points a loaded gun at another service member and fires, causing injury.
  • Bat Assault: A service member strikes another with a baseball bat, causing serious injury.
  • Broken Bottle Stab: A service member stabs another with a broken bottle during a bar fight.
  • Vehicle Attack: A service member intentionally runs over another service member with a vehicle.
  • Machete Assault: A service member attacks another with a machete.
  • Blunt Object Attack: A service member hits another with a heavy object, such as a hammer.
  • Screwdriver Stabbing: A service member stabs another with a screwdriver.
  • Taser Attack: A service member uses a taser on another service member, causing injury.
  • Chainsaw Assault: A service member uses a chainsaw to threaten or harm another service member.
  • Explosive Device: A service member uses an explosive device to cause harm.
  • Sword Attack: A service member attacks another with a sword or similar weapon.
  • Chemical Attack: A service member uses a harmful chemical substance to cause injury.
  • Arrow Shooting: A service member shoots another service member with a bow and arrow.
  • Electric Shock: A service member uses an electrical device to shock and injure another service member.
  • Fire Attack: A service member uses fire or a flammable substance to harm another service member.
  • Spear Assault: A service member uses a spear or spear-like object to attack another service member.
  • Nail Gun Attack: A service member uses a nail gun to injure another service member.
  • Poisoning: A service member intentionally poisons another service member’s food or drink.
  • Stun Gun: A service member uses a stun gun to incapacitate another service member, causing injury.

These examples illustrate various ways a dangerous weapon can be used in aggravated assault under Article 128 of the UCMJ.

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