Article 128 UCMJ Assault Consummated by a Battery

Facing a court-martial, UCMJ action, Administrative Separation Board, or other Adverse Administrative Action for Article 128 UCMJ Assault Consummated by a Battery? Call our experienced military defense lawyers at 1-800-921-8607 for a free consultation.

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Note: This law applies only to Article 128 UCMJ Assault Consummated by a Battery committed on and after 1 January 2019.

What is Article 128 UCMJ Assault Consummated by a Battery?

Article 128 of the Uniform Code of Military Justice (UCMJ) encompasses various forms of assault, including “Assault Consummated by a Battery.” This specific offense involves unlawful and offensive physical contact with another person, carried out with intent.

To secure a conviction, the prosecution must prove that the accused committed the assault, that the assault was consummated by battery, and that the act was done intentionally and without legal justification.

Penalties for assault consummated by battery under Article 128 UCMJ can vary widely, depending on the severity of the incident and any aggravating factors. Consequences may include confinement, reduction in rank, forfeiture of pay, and a bad conduct discharge. Given the serious nature of these penalties, it is crucial for anyone accused of this offense to seek legal representation from the best military defense lawyers.

Engaging experienced court martial lawyers is essential for several reasons. Firstly, these lawyers deeply understand the UCMJ and military legal procedures, which is critical for building a strong defense. They can effectively challenge the prosecution’s evidence, identify procedural errors, and protect the accused’s rights throughout the legal process. Additionally, skilled defense lawyers can negotiate for lesser charges or reduced penalties, significantly impacting the case’s outcome.

For those facing charges under Article 128 UCMJ, consulting with reputable court martial lawyers, such as those at Gonzalez & Waddington, can make a substantial difference in the defense strategy and overall outcome. Their expertise in handling military cases ensures that the accused receives comprehensive legal support tailored to the complexities of military law.

Note: The maximum and minimum punishments for Article 128 UCMJ Assault Consummated by a Battery vary depending on the date of the offense.

What are the Elements of Article 128 UCMJ Assault Consummated by a Battery?

That (state the time and place alleged), the accused did bodily harm to (state the name of the alleged victim) by (state the manner alleged);
That the bodily harm was done unlawfully; and
That the bodily harm was done with force or violence.

What are the Maximum Punishments for Article 128 UCMJ Assault Consummated by a Battery?

For Article 128 UCMJ Assault Consummated by a Battery offense committed between 1 January 2019 and 27 December 2023:

6 Months of Confinement
Bad Conduct Discharge
Total Forfeitures
Reduction to E-1

For Article 128 UCMJ Assault Consummated by a Battery offenses committed after 27 December 2023

Under the Sentencing Parameters, Article 128 UCMJ Assault Consummated by a Battery is a Category 1 Offense which carries a confinement range from 0-12 months
Bad Conduct Discharge
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 Assault Consummated by a Battery

In that SGT Sally Smoot, US Army, did, at or near Fort Liberty, North Carolina, on or about 3 July 2025, unlawfully strike COL Rebecca Johnson in the stomach with SGT Sally Smoot’s fist.

Model Specification for Article 128 UCMJ Assault Consummated by a Battery

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, unlawfully (strike) (__________) __________ (on) (in) the __________ with __________.

What are the Definitions for Article 128 UCMJ Assault Consummated by a Battery?

An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.

“Bodily harm” under Article 128 UCMJ Assault Consummated by a Battery means an offensive touching of another, however slight. An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.

“Culpable negligence” under Article 128 UCMJ Assault Consummated by a Battery is a degree of carelessness greater than simple negligence.

“Simple negligence” under Article 128 UCMJ Assault Consummated by a Battery is the absence of due care. The law always requires everyone to demonstrate care for the safety of others, which a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means.

“Culpable negligence,” under Article 128 UCMJ Assault Consummated by a Battery, on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.

Article 128 UCMJ Assault Consummated by a Battery Military Defense Lawyers

Background of Article 128 UCMJ Assault Consummated by a Battery

Article 128 of the Uniform Code of Military Justice (UCMJ) covers assault offenses. “Assault Consummated by a Battery” specifically refers to instances where an assault results in actual physical contact.

Basics of Article 128 UCMJ Assault Consummated by a Battery

To secure a conviction for Assault Consummated by a Battery 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.
Battery: The assault was consummated by a battery, meaning the accused made physical contact with the person assaulted.
Intent: The contact was done with unlawful force or violence.

Collateral Consequences of Article 128 UCMJ Assault Consummated by a Battery Conviction

A conviction for Article 128 UCMJ Assault Consummated by a Battery 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 Assault Consummated by a Battery

The primary purpose of penalizing Article 128 UCMJ Assault Consummated by a Battery is to maintain good order and discipline within the military. Physical violence among service members undermines trust, damages unit cohesion, and impairs operational effectiveness. By criminalizing such behavior, the military aims to:

Protect service members from 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 Assault Consummated by a Battery, speak with one of our experienced military court martial lawyers to discuss your case.

Summary of Article 128 UCMJ Assault Consummated by a Battery

Article 128 of the Uniform Code of Military Justice (UCMJ) addresses assault, with a specific focus on two categories: simple assault and assault consummated by a battery. Assault consummated by a battery occurs when an individual intentionally and unlawfully touches another person in a manner that is either harmful or offensive. This category of assault involves physical contact, distinguishing it from simple assault, which might involve threats or attempts to inflict harm without actual physical contact.

To convict someone of assault consummated by a battery under Article 128, the prosecution must prove the following elements beyond a reasonable doubt:

The Accused Committed an Assault: The accused must have inflicted physical contact upon another person. This contact must be deliberate, not accidental.
The Assault was Consummated by a Battery: The contact must be unlawful and either harmful or offensive to the victim. The prosecution must show that the accused’s actions were unjustified or excused under legal defense.
Mens Rea (Mental State): The accused must have acted with the intent to inflict harm or offense. Negligent or reckless actions generally do not meet the threshold for assault consummated by a battery under Article 128.

Penalties for violating Article 128 can be severe and may include confinement, reduction in rank, forfeiture of pay, and a punitive discharge. The severity of the punishment depends on various factors, including the circumstances of the offense, the severity of the harm inflicted, and the accused’s military record.

Examples of Article 128 UCMJ Assault Consummated by a Battery

Striking a fellow service member during a disagreement.
Shoving someone in a heated argument.
Punching a subordinate during a disciplinary action.
Kicking another soldier in the barracks.
Slapping a fellow service member in the face.
Choking a subordinate during training.
Pushing someone down the stairs.
Throwing an object that hits another person.
Grabbing someone’s arm forcefully and causing injury.
Hitting a fellow service member with a blunt object.
Spitting in someone’s face.
Shaking a subordinate violently.
Slamming someone against a wall.
Kicking a fellow soldier in the shin.
Head-butting another service member.
Pulling someone’s hair aggressively.
Biting a fellow service member during a confrontation.
Using a taser on another soldier.
Poking someone forcefully in the chest.
Elbowing a subordinate in the ribs during a training exercise.

Fictional fact patterns that could lead to charges under Article 128 UCMJ Assault Consummated by a Battery, along with potential defense strategies:

1. Bar Fight Brawl:

Facts: During an off-base bar fight, a Petty Officer First Class (PO1) punches another sailor in the face, causing a broken nose.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Self-defense (if the PO1 was attacked first), mutual combat, lack of intent to cause serious bodily harm.

2. Hazing Incident:

Facts: A group of senior enlisted sailors force a junior sailor to perform strenuous exercises as part of an initiation ritual, resulting in physical injuries.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Challenge the definition of hazing, argue that the activities were consensual, lack of intent to cause harm.

3. Domestic Dispute:

Facts: A Lieutenant physically assaults their spouse during a heated argument at their off-base residence, causing bruising and lacerations.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Self-defense (if the spouse was the aggressor), challenge the spouse’s credibility, argue for alternative dispute resolution.

4. Training Exercise Gone Wrong:

Facts: During a training exercise, a Gunnery Sergeant strikes a subordinate in the head with a training weapon, resulting in a concussion.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Argue that the contact was accidental, within the scope of training, and not intended to cause harm.

5. Road Rage Incident:

Facts: A Chief Petty Officer, while driving in civilian clothes, gets into a physical altercation with another driver after a minor traffic accident, resulting in minor injuries.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Self-defense, argue that the other driver was the aggressor, challenge the extent of the injuries.

6. Sports Injury:

Facts: During an intramural flag football game, a Lieutenant tackles an opposing player aggressively, causing a broken leg.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Argue that the contact was within the normal course of the sport and not excessive or malicious.

7. Verbal Altercation Turns Physical:

Facts: A heated argument between two sailors escalates into a physical confrontation, with one sailor pushing the other, causing them to fall and break their wrist.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Self-defense, mutual combat, argue that the injury was unintentional.

8. Disciplinary Action:

Facts: A Master Chief Petty Officer uses physical force to discipline a junior sailor who was insubordinate, resulting in minor injuries.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Argue that the force used was reasonable and necessary to maintain good order and discipline, challenge the definition of battery.

9. Intoxication-Fueled Assault:

Facts: A Seaman, heavily intoxicated, assaults a fellow sailor during a party, causing significant facial injuries.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Argue that intoxication negated the intent to cause harm, seek alternative sentencing options like alcohol rehabilitation.

10. Mistaken Identity:

Facts: A Lieutenant is accused of assaulting a civilian outside a bar, but the Lieutenant claims it was a case of mistaken identity.
Charge: Article 128 UCMJ Assault Consummated by a Battery
Possible Defenses: Provide alibi evidence, challenge the identification procedures used by law enforcement, raise doubts about the credibility of witnesses.

Key Takeaway:

Each of these scenarios presents unique challenges and requires a nuanced defense strategy. An experienced Naval Station Norfolk military defense lawyer can assess the specific facts of your case, identify the most effective defenses, and advocate tirelessly for your rights and best interests.