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Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm

Note: This law applies only to Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm offenses committed on and after 1 January 2019.

What is Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm?

Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm 1 Gonzalez & Waddington - Attorneys at LawArticle 128 of the UCMJ covers aggravated assault inflicting grievous bodily harm, a serious crime involving intentional harm that causes severe, lasting injury such as permanent disfigurement, loss of a limb, or significant impairment. Convictions for this offense can lead to harsh penalties, including confinement, forfeiture of pay, reduction in rank, and dishonorable discharge.

Anyone accused of this crime should seek representation from the best military defense lawyers to navigate the complexities of court-martial proceedings. Skilled court-martial lawyers can build a robust defense, challenge the prosecution’s evidence, and protect the accused’s rights.

Engaging experienced legal counsel, like those at Gonzalez & Waddington, is crucial for ensuring a comprehensive defense strategy and potentially mitigating severe penalties. Their thorough understanding of military law and dedication to defending service members can significantly influence the case’s outcome.

Note: The maximum and minimum punishments for Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm vary depending on the date of the offense.

What are the types of Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm?

  1. Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm
  2. Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm Committed upon a child under the age of 16 years
  3. Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm With a Loaded Firearm

What are the Elements of Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm?

  1. That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by (state the manner alleged); and
  2. That grievous bodily harm was thereby inflicted upon (state the name of the alleged victim), to wit: (________).

What are the Elements of Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm, Committed upon a Child under 16 years?

  1. That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by (state the manner alleged); (and)
  2. That grievous bodily harm was thereby inflicted upon (state the name of the alleged victim), to wit: (________); and
  3. That, at the time, (state the name of the alleged victim) was a child under the age of 16 years.

What are the Elements of Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm, a Loaded Firearm?

  1. That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by (state the manner alleged); (and)
  2. That grievous bodily harm was thereby inflicted upon (state the name of the alleged victim), to wit: (________); and
  3. That the injury was inflicted with a loaded firearm.

What is the Maximum Punishment for Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm?

For 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 offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm 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 Inflicting Grievous Bodily Harm Committed upon a child under the age of 16 years?

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 Inflicting Grievous Bodily Harm 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. Manual for Courts-Martial, United States (2024 ed.), Appendix 12B-C

What is the Maximum Punishment for Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm (With a loaded firearm)?

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

  • 10 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 Inflicting Grievous Bodily Harm 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

Combined UCMJ Maximum Punishment Charts

Sample Specification for Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm

In that COL Renee Collins, US Army, did, at or near Fort Carson, Colorado, on or about 14 August 2025, commit an assault upon CPT Dill Weed by striking him on the head with a brick and did thereby inflict grievous bodily harm upon him, to wit: a fractured skull.

Model Specification for Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit an assault upon __________ (a child under the age of 16 years) by (shooting) (striking) (cutting) (__________) (him) (her) (on) the __________ with a (loaded firearm) (club) (rock) (brick) (__________) and did thereby inflict grievous bodily harm upon (him) (her), to wit: a (broken leg) (deep cut) (fractured skull) (__________).

What are the Definitions for Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm?

An “assault” 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” 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” means an offensive touching of another, however slight. It is not necessary that bodily harm be actually 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 by means of 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” if done without legal justification or excuse and without the lawful consent of the victim.

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

“Firearm” means any weapon which 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 there has been inserted into it a (clip) (magazine) containing a round of live ammunition, regardless of whether there is a round in the chamber.)

Accused’s knowledge of child’s age. 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. 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 this offense.

Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm Military Defense Lawyers

Background of the Law Article 128 UCMJ Aggravated Assault Inflicting Grievous Bodily Harm

Article 128 of the Uniform Code of Military Justice (UCMJ) addresses various forms of assault, including aggravated assault which involves inflicting grievous bodily harm. This type of assault is considered extremely serious due to the severe injuries inflicted on the victim. The UCMJ provides strict penalties for such offenses to maintain discipline and ensure the safety of all service members.

Elements of the Offense

To secure a conviction for aggravated assault inflicting grievous bodily harm under Article 128, the prosecution must prove the following elements beyond a reasonable doubt:

  • Assault: The accused committed an assault by either attempting or offering with unlawful force or violence to do bodily harm.
  • Grievous Bodily Harm: The assault resulted in grievous bodily harm to the victim, which means a serious injury that is likely to cause death, significant disfigurement, or long-term loss or impairment of the function of any bodily member, organ, or mental faculty.
  • Intent: The assault was done with the intent to inflict grievous bodily harm.

Collateral Consequences of a Conviction

A conviction for aggravated assault inflicting grievous bodily harm 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 the Law

The primary purpose of penalizing aggravated assault inflicting grievous bodily harm under Article 128 is to maintain good order and discipline within the military. Such assaults undermine trust, unit cohesion, and operational effectiveness. By criminalizing such behavior, the military aims to:

  • Protect service members from severe violence and ensure a safe working environment
  • Promote respect and professionalism within the ranks
  • Deter potential offenders by highlighting the serious 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 Inflicting Grievous Bodily Harm, speak with one of our experienced military court martial lawyers to discuss your case.

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