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Article 128 UCMJ Aggravated Assault Substantial Bodily Harm

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

What is Article 128 UCMJ Aggravated Assault Substantial Bodily Harm?

Article 128 UCMJ Aggravated Assault Substantial Bodily HarmArticle 128 UCMJ Aggravated Assault Substantial Bodily Harm involves intentionally inflicting serious injury on another person that results in significant, lasting damage, such as broken bones, deep wounds, or severe burns. Convictions for this crime carry severe penalties, including confinement, forfeiture of pay, reduction in rank, and dishonorable discharge.

Those accused of aggravated assault under Article 128 UCMJ should seek the best military defense lawyers to navigate the complexities of court-martial proceedings. Skilled court-martial lawyers can provide a robust defense, protect the accused’s rights, and work toward a favorable outcome. Experienced military defense attorneys, such as those at Gonzalez & Waddington, are crucial in these high-stakes cases. Their deep understanding of military law and proven defense strategies ensure comprehensive and effective legal representation.

Such serious charges require the support of knowledgeable court-martial lawyers who can challenge the prosecution’s evidence and mitigate potential penalties.

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

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

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

What are the Elements of Article 128 UCMJ Aggravated Assault Substantial 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 substantial 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 Substantial 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);
  2. That substantial 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 Substantial 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);
  2. That substantial 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 Substantial Bodily Harm?

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 Substantial 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 Substantial Bodily Harm Committed upon a child under the age of 16 years?

For Article 128 UCMJ Aggravated Assault Substantial Bodily Harm offenses committed between 1 January 2019 and 27 December 2023:

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

For Article 128 UCMJ Aggravated Assault Substantial Bodily Harm offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128 UCMJ Aggravated Assault Substantial 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 Substantial Bodily Harm (With a loaded firearm)?

For Article 128 UCMJ Aggravated Assault Substantial Bodily Harm 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 Article 128 UCMJ Aggravated Assault Substantial Bodily Harm offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128 UCMJ Aggravated Assault Substantial 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 Substantial Bodily Harm

In that LTJG Chris Rocker, US Navy, did, at or near Dallas, Texas, on or about 23 May 2025, commit an assault upon Lilly Rocker, a child under the age of 16 years, cutting her on the arm with razor blade and did thereby inflict substantial bodily harm upon her, to wit: deep gash.

Model Specification for Article 128 UCMJ Aggravated Assault Substantial 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 substantial bodily harm upon (him) (her), to wit: (severe bruising of the face) (head concussion) (temporary blindness) (________).

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

Article 128 UCMJ Aggravated Assault Substantial Bodily HarmAn “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” under Article 128 UCMJ Aggravated Assault Substantial 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” under Article 128 UCMJ Aggravated Assault Substantial Bodily Harm means an 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 Substantial Bodily Harm 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 Substantial Bodily Harm 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 in Article 128 UCMJ Aggravated Assault Substantial Bodily Harm

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

“Firearm” under Article 128 UCMJ Aggravated Assault Substantial Bodily Harm 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 in Article 128 UCMJ Aggravated Assault Substantial Bodily Harm

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 in Article 128 UCMJ Aggravated Assault Substantial Bodily Harm

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 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 Substantial Bodily Harm.

Article 128 UCMJ Aggravated Assault Substantial Bodily Harm Military Defense Lawyers

Background of Article 128 UCMJ Aggravated Assault Substantial Bodily Harm

Article 128 of the Uniform Code of Military Justice (UCMJ) covers various forms of assault, including aggravated assault, which involves causing substantial bodily harm. Aggravated assault is treated more severely due to the serious nature of the injuries inflicted on the victim. This article ensures that violent behaviors resulting in significant injuries are addressed and penalized appropriately.

Basics of Article 128 UCMJ Aggravated Assault Substantial Bodily Harm

To secure a conviction for aggravated assault resulting in substantial 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.
  • Substantial Bodily Harm: The assault resulted in substantial bodily harm to the victim, which means an injury involving a temporary but substantial disfigurement or temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty.
  • Intent: The assault was done with the intent to inflict substantial bodily harm.

Collateral Consequences of Article 128 UCMJ Aggravated Assault Substantial Bodily Harm Conviction

A conviction for aggravated assault resulting in substantial 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 Article 128 UCMJ Aggravated Assault Substantial Bodily Harm

The primary purpose of penalizing aggravated assault resulting in substantial bodily harm under Article 128 is to maintain good order and discipline within the military. Such assaults severely 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 Substantial Bodily Harm, speak with one of our experienced military court martial lawyers to discuss your case.

Examples of Article 128 UCMJ Aggravated Assault Substantial Bodily Harm:

  1. Stabbing with a Knife: A service member stabs another, causing deep wounds and significant bleeding.
  2. Shooting with a Firearm: A service member shoots another, resulting in substantial injury requiring medical attention.
  3. Severe Beating: A service member beats another severely, causing broken bones and internal injuries.
  4. Assault with a Deadly Weapon: Using a bat, crowbar, or similar object to inflict serious harm.
  5. Strangulation: Choking another service member to the point of unconsciousness or causing serious injury.
  6. Kicking in the Head: Repeatedly kicking another service member in the head, resulting in a concussion or other severe head injury.
  7. Throwing from a Height: Throwing another service member from a significant height, resulting in broken bones or other major injuries.
  8. Using Explosives: Injuring another service member with a grenade or other explosive device.
  9. Burning: Setting another service member on fire or causing severe burns.
  10. Hitting with a Vehicle: Deliberately running over another service member with a vehicle.
  11. Poisoning: Intentionally poisoning another service member, causing severe illness or long-term health issues.
  12. Slashing with a Sharp Object: Using a razor, broken glass, or similar object to inflict deep lacerations.
  13. Blunt Force Trauma: Hitting another service member with a heavy object, causing substantial injury.
  14. Drowning: Attempting to drown another service member, resulting in significant injury or near-death experience.
  15. Severe Electric Shock: Using electricity to cause severe burns or heart issues.
  16. Sexual Assault with Severe Injury: A sexual assault that results in substantial bodily harm.
  17. Breaking Limbs: Intentionally breaking another service member’s limbs.
  18. Repeatedly Punching: Punching another service member repeatedly to the point of causing substantial bodily harm.
  19. Severe Biting: Biting another service member severely enough to cause substantial injury and risk of infection.
  20. Throwing Acid: Throwing acid or another corrosive substance, causing severe burns and disfigurement.

These examples illustrate the range of actions that can be considered under the category of aggravated assault resulting in substantial bodily harm as defined by Article 128 of the UCMJ.

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