Article 128 UCMJ Assault Upon a Commissioned Officer

Facing a court-martial, UCMJ action, Administrative Separation Board, or other Adverse Administrative Action for Article 128 UCMJ Assault Upon a Commissioned Officer? 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 Upon a Commissioned Officer offenses committed on and after 1 January 2019.

What is Article 128 UCMJ Assault Upon a Commissioned Officer?

Article 128 of the UCMJ addresses the crime of assault upon a commissioned officer, which is a serious offense in the military. This crime involves any form of physical attack or threat of violence directed at an officer. Assault can include striking, hitting, or any other form of aggressive contact. Manual for Courts-Martial, United States (2024 ed.)

The consequences of being convicted of assaulting a commissioned officer are severe. They can include confinement, forfeiture of pay, reduction in rank, and a dishonorable discharge. The gravity of these penalties reflects the importance of maintaining discipline and respect within the military hierarchy.

Anyone accused of this crime should seek representation from the best military defense lawyers. Skilled court martial lawyers are crucial in navigating the complexities of military law, protecting the accused’s rights, and developing a strong defense strategy. Experienced lawyers can challenge the prosecution’s evidence, uncover procedural errors, and work towards achieving a favorable outcome for the accused.

For those facing charges under Article 128 UCMJ, enlisting the assistance of knowledgeable court martial lawyers, such as those at Gonzalez & Waddington, is essential. Their comprehensive understanding of the UCMJ and court martial procedures enables them to provide the robust defense needed in these high-stakes cases.

Note: The maximum and minimum punishments for Article 128 UCMJ Assault Upon a Commissioned Officer vary depending on the date of the offense.

What are the Elements of Article 128 UCMJ Assault Upon a Commissioned Officer?

That (state the time and place alleged) the accused (attempted to do) (offered to do) (did) bodily harm to (state the name and rank of the alleged victim) by (state the alleged manner of the assault or battery);
That the (attempt) (offer) (bodily harm) was done unlawfully;
That the (attempt) (offer) (bodily harm) was done with force or violence;
That (state the name and rank of the alleged victim) was a commissioned officer of the (the United States Army) (__________); and
That the accused then knew that (state the name and rank of the alleged victim) was a commissioned officer of the (the United States Army) (__________).

What are the Maximum Punishments for Article 128 UCMJ Assault Upon a Commissioned Officer?

For Article 128 UCMJ Assault Upon a Commissioned Officer 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 Article 128 UCMJ Assault Upon a Commissioned Officer offenses committed after 27 December 2023

Under the Sentencing Parameters, Article 128 UCMJ Assault Upon a Commissioned Officer 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

Combined UCMJ Maximum Punishment Charts

Sample Specification for Article 128 UCMJ Assault Upon a Commissioned Officer

In that LT Jimmy Green, US Navy, did, at or near Norfolk, Virginia, on or about 5 September 2025, assault LCDR Robbie Renyolds, who then was and was then known by the accused to be a commissioned officer of the United States Navy by slamming him in the face with LT Jimmy Green’s hand.

Model Specification for Article 128 UCMJ Assault Upon a Commissioned Officer

In that ____ (personal jurisdiction data), did, (at/on board—location), on or about ______, assault ______, who then was and was then known by the accused to be a commissioned officer of (______, a friendly foreign power) [the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard) (_______)] by _______.

What are the Definitions for Article 128 UCMJ Assault Upon a Commissioned Officer?

Assault by attempt and Article 128 UCMJ Assault Upon a Commissioned Officer. If the specification alleges an attempt to do bodily harm, give the following instructions:

An “assault” is an unlawful attempt, made with force or violence, to do bodily harm to another, whether or not the attempt is consummated. The accused must have committed an overt act with the specific intent to inflict bodily harm. An “overt act” is an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. Bodily harm doesn’t need to be actually inflicted.

“Bodily harm” means an offensive touching of another, however slight.

An attempt to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.

Assault by offer. If the specification alleges an offer to do bodily harm, give the following instructions:

An “assault” is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated. The accused must have made a demonstration of violence, either by an intentional or by a culpably negligent act or omission, which created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required. Bodily harm doesn’t need to be actually inflicted.

“Bodily harm” means an offensive touching of another, however slight. An offer to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.

“Culpable negligence” is a degree of carelessness greater than simple negligence.

“Simple negligence” 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,” 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.) (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 if the combination constitutes a demonstration of violence.)

Assault by battery and Article 128 UCMJ Assault Upon a Commissioned Officer. If the specification alleges an assault by battery, give the following instruction:

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” 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” is a degree of carelessness greater than simple negligence.

“Simple negligence” is the absence of due care. The law always requires everyone to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means.

“Culpable negligence,” 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.)

Superior status/execution of office and Article 128 UCMJ Assault Upon a Commissioned Officer

The following instructions may be provided if necessary.
The victim doesn’t need to be superior in rank or command to the accused or in the same armed force as the accused.
The victim doesn’t need to be in the execution of office at the time of assault.

Divestiture or abandonment defense and Article 128 UCMJ Assault Upon a Commissioned Officer

When the issue arises whether the victim’s conduct divested the victim of his or her status as a commissioned officer, the following instructions should be given. The evidence has raised an issue as to whether (state the name and rank of the alleged victim) conducted himself/herself before the charged assault in a manner that took away his/her status as a commissioned officer.

An officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for a commissioned officer under similar circumstances is considered to have abandoned his/her status as a commissioned officer.

Additional Instructions on Article 128 UCMJ Assault Upon a Commissioned Officer

In determining this issue, you must consider all the relevant facts and circumstances (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).

You may find the accused guilty of the offense of assault upon a commissioned officer only if you are convinced beyond a reasonable doubt that __________, by his/her (conduct) (and) (language) did not abandon his/her status as a commissioned officer.

Article 128 UCMJ Assault Upon a Commissioned Officer Military Defense Lawyers

Background of Article 128 UCMJ Assault Upon a Commissioned Officer

Article 128 of the Uniform Code of Military Justice (UCMJ) addresses various forms of assault, including Assault Upon a Commissioned Officer. This provision specifically targets assaults directed at officers, recognizing the need to uphold respect and authority within the military hierarchy. Such assaults are considered more severe due to the potential impact on discipline and command structure.

Basics of Article 128 UCMJ Assault Upon a Commissioned Officer

To secure a conviction for Assault Upon a Commissioned Officer under Article 128, the prosecution must prove the following elements beyond a reasonable doubt:

Assault: The accused committed an assault, which involves an attempt or offer with unlawful force or violence to do bodily harm.
Officer Status: The victim of the assault was a commissioned officer at the time of the offense.
Knowledge: The accused knew or should have reasonably known that the victim was a commissioned officer.
Intent: The assault was carried out with unlawful force or violence.

Collateral Consequences of Article 128 UCMJ Assault Upon a Commissioned Officer Conviction

A conviction for Article 128 UCMJ Assault Upon a Commissioned Officer can lead to numerous collateral consequences, such as:

Difficulty securing 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 Upon a Commissioned Officer

The primary purpose of penalizing Assault Upon a Commissioned Officer under Article 128 is to maintain good order and discipline within the military. The authority and respect afforded to commissioned officers are crucial for effective command and control. By criminalizing such assaults, the military aims to:

Protect officers and ensure they can perform their duties without fear of violence
Preserve the hierarchical structure and authority within the military
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 Assault Upon a Commissioned Officer, speak with one of our experienced military court martial lawyers to discuss your case.

Examples of Article 128 UCMJ Assault Upon a Commissioned Officer

Striking: A service member punches a commissioned officer during a confrontation.
Kicking: Kicking a commissioned officer in the leg during an altercation.
Shoving: Shoving a commissioned officer in anger.
Slapping: Slapping a commissioned officer across the face.
Head-Butting: Head-butting a commissioned officer during an argument.
Choking: Choking a commissioned officer during a physical altercation.
Throwing Objects: Throwing a chair at a commissioned officer.
Grabbing: Grabbing a commissioned officer by the collar and shaking them.
Spitting: Spitting in the face of a commissioned officer.
Using a Weapon: Brandishing a knife and attempting to stab a commissioned officer.
Elbowing: Elbowing a commissioned officer in the ribs during a dispute.
Using Pepper Spray: Using pepper spray on a commissioned officer.
Pushing: Pushing a commissioned officer down a flight of stairs.
Hitting with an Object: Hitting a commissioned officer with a blunt object like a bat.
Throwing a Drink: Throwing a drink in a commissioned officer’s face.
Biting: Biting a commissioned officer during a struggle.
Hair Pulling: Pulling a commissioned officer’s hair.
Using a Taser: Using a taser on a commissioned officer.
Threatening with a Gun: Pointing a gun at a commissioned officer and threatening them.
Kneeing: Kneeing a commissioned officer in the stomach during a physical confrontation.

These examples demonstrate the various forms of assault that can be committed against a commissioned officer, as outlined by Article 128 of the UCMJ.

Fictional fact patterns that could violate Article 128 UCMJ Assault Upon a Commissioned Officer, along with possible defenses a civilian military defense lawyer might raise:

1. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: During a heated argument at a bar, a Sergeant shoves a Lieutenant Commander, causing them to fall and sustain minor injuries.
Possible Defenses: Self-defense, lack of intent to assault a commissioned officer (mistaken identity), or intoxication as a mitigating factor.

2. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: A disgruntled Petty Officer throws a drink in the face of their Commanding Officer during a holiday party.
Possible Defenses: Accidental spillage, lack of intent to harm or disrespect, provocation by the officer’s words or actions.

3. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: A sailor, while intoxicated, punches a Lieutenant in the face during a dispute at a local restaurant.
Possible Defenses: Intoxication leading to impaired judgment, lack of specific intent to assault a commissioned officer, or self-defense if the officer initiated the physical altercation.

4. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: A service member throws a chair at a wall during an argument with their superior, narrowly missing the officer’s head.
Possible Defenses: Lack of intent to harm the officer, the chair was thrown out of frustration and not aimed at the officer, or temporary insanity due to extreme emotional distress.

5. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: A Sailor pushes a Lieutenant during a training exercise, causing them to trip and break their wrist.
Possible Defenses: The push was unintentional and accidental, occurring within the normal course of training, or the Lieutenant’s injury was a result of their own negligence.

6. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: A service member spits in the face of a superior officer during a heated disciplinary hearing.
Possible Defenses: Temporary insanity due to extreme stress, the spitting was an involuntary reflex, or provocation by the officer’s harsh or demeaning words.

7. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: A sailor kicks a Commander’s car in anger after receiving a negative performance evaluation.
Possible Defenses: The damage was unintentional, the Sailor did not know the car belonged to the Commander, or the car was already damaged and the Sailor’s actions did not worsen it.

8. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: During a protest, a service member grabs an officer’s arm, attempting to prevent them from leaving a restricted area.
Possible Defenses: The physical contact was minimal and necessary to prevent the officer from entering a dangerous area, or the Sailor was exercising their First Amendment right to protest.

9. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: A service member throws a water bottle at a group of officers during a meeting, striking one in the head.
Possible Defenses: The bottle was not aimed at any particular officer, the act was a misguided prank or act of frustration, or the officer’s injury was minor and unintentional.

10. Article 128 UCMJ Assault Upon a Commissioned Officer:

Facts: A service member blocks the path of a superior officer and threatens them with physical violence if they proceed.
Possible Defenses: The threat was not credible and was made in the heat of the moment, the Sailor was trying to de-escalate a tense situation, or the officer was not actually in fear of harm.