Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties

Facing a court-martial, UCMJ action, Administrative Separation Board, or other Adverse Administrative Action for Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties? 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 Person in the Execution of Law Enforcement Duties offenses committed on and after 1 January 2019.

What is Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties?

Article 128 of the UCMJ addresses assault upon a person in executing law enforcement duties. This offense involves attacking or attempting to cause harm to military law enforcement personnel while performing their official duties. This can include physical attacks, threats, or any act interfering with their duty. Manual for Courts-Martial, United States (2024 ed.)

The consequences for such an offense are severe and can include confinement, reduction in rank, forfeiture of pay, and a dishonorable discharge. The severity of these penalties highlights the importance of obtaining the best military defense lawyers to navigate the complexities of a court martial and ensure the accused’s rights are protected.

Court martial lawyers are crucial in these cases as they understand the unique aspects of military law and the specific procedures involved in a court-martial. They can challenge the prosecution’s evidence, cross-examine witnesses, and present a robust defense strategy to achieve the best possible outcome for the accused.

Engaging experienced court martial lawyers, such as those at Gonzalez & Waddington, is essential for anyone facing charges under Article 128 UCMJ. Their deep knowledge of military justice allows them to provide comprehensive legal representation, addressing every aspect of the case to mitigate potential penalties and protect the accused’s future.

Note: The maximum and minimum punishments for Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties vary depending on the date of the offense.

What are the Elements of Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties?

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 manner alleged);
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 person who then had and was in the execution of (military police) (law enforcement) (__________) duties; and
That the accused knew that (state the name and rank of the alleged victim) then had and was in the execution of such duties.

What are the Maximum Punishments for Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties?

For Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties 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 Person in the Execution of Law Enforcement Duties offenses committed after 27 December 2023

Under the Sentencing Parameters, Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties 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.

Combined UCMJ Maximum Punishment Charts

Sample Specification for Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties

In that PFC Emily Wilkie, US Army, did, at or near Fort Moore, Georgia, on or about 2 December 2025, assault SGT Samantha Robles, who then was and was then known by the accused to be a person then having and in the execution of military police duties, by striking her in the stomach with her fist.

Model Specification for Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties

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 person then having and in the execution of (Air Force security police) (military police) (shore patrol) (master at arms) ((military) (civilian) law enforcement)) duties, by __________.

What are the Definitions for Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties?

A person is “in the execution of (military police) (law enforcement) (_______) duties” when doing any law enforcement act or service required or authorized to be done by him/her by statute, regulation, the order of a superior, military usage, or by custom of the service.

Assault by attempt and Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties

If the specification alleges an attempt to do bodily harm, give the following instruction:

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. It is not necessary that bodily harm 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 instruction:

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. It is not necessary that bodily harm be actually inflicted.

“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” under Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Dutiesis a degree of carelessness greater than simple negligence.

“Simple negligence” under Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Dutiesis 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,” under Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Dutieson 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.)

In Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties cases, 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 Person in the Execution of Law Enforcement Duties

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 requires everyone at all times 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.)

Divestiture defense. If the issue has arisen whether the law enforcement person conducted himself or herself in a manner that divested him or her of the status of a person in the execution of law enforcement duties, the following instruction 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 person acting in the execution of (police) (law enforcement) duties.

Final Instructions on Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties

A law enforcement person whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for that law enforcement officer’s position under similar circumstances is considered to have abandoned that rank and position.

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 assault on a law enforcement officer in the execution of his/her duties only if you are satisfied beyond a reasonable doubt that (state the name and rank of the alleged victim) by his/her (conduct) (and) (language) did not abandon his/her status as a law enforcement official acting in the execution of his/her duties.

Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties Military Defense Lawyers

Background of Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties

Article 128 of the Uniform Code of Military Justice (UCMJ) covers various forms of assault, including those against individuals performing law enforcement duties. Assaulting a person engaged in law enforcement duties is considered a serious offense due to its impact on maintaining order and discipline within the military and ensuring the safety of those enforcing the law.

Basics of Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties

To secure a conviction for assault upon a person in the execution of law enforcement duties under Article 128, the prosecution must prove the following elements beyond a reasonable doubt:

Assault: The accused committed an assault by attempting or offering with unlawful force or violence to do bodily harm.
Victim’s Status: At the time of the assault, the victim was a person authorized to execute law enforcement duties.
Knowledge: The accused knew or reasonably should have known that the victim was engaged in executing law enforcement duties.
Duty Status: The victim was in the execution of their law enforcement duties at the time of the assault.

Collateral Consequences of Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties Conviction

A conviction for assault upon a person in the execution of law enforcement duties 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 Upon a Person in the Execution of Law Enforcement Duties

The primary purpose of penalizing assault upon a person in executing law enforcement duties under Article 128 is to maintain good order and discipline within the military. Such assaults undermine the authority and respect necessary for effective law enforcement and military operations. By criminalizing such behavior, the military aims to:

Protect service members and civilians performing law enforcement duties from violence
Ensure the integrity of law enforcement operations within the military
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 Upon a Person in the Execution of Law Enforcement Duties, speak with one of our experienced military court martial lawyers to discuss your case.

Examples of Article 128 UCMJ Assault Upon a Person in the Execution of Law Enforcement Duties:

Striking an MP: Hitting a military police officer who is attempting to make an arrest.
Pushing a Guard: Shoving a security guard conducting a routine inspection.
Kicking a Security Detail: Kicking a member of the security detail who is controlling access to a restricted area.
Punching an Investigator: Punching a military investigator during an interrogation.
Grabbing a Weapon: Attempting to grab a weapon from a law enforcement officer during a confrontation.
Choking an MP: Choking a military police officer while being detained.
Throwing Objects: Throwing objects at law enforcement personnel during a crowd control situation.
Spitting on an Officer: Spitting on a law enforcement officer during an altercation.
Using a Vehicle: Attempting to run over a law enforcement officer with a vehicle.
Blocking a Path: Physically blocking the path of a law enforcement officer and pushing them back.
Elbowing an Officer: Elbowing a law enforcement officer trying to restrain an individual.
Head-Butting: Head-butting a law enforcement officer during an arrest.
Biting: Biting a law enforcement officer during a struggle.
Kicking During Restraint: Kicking a law enforcement officer while being restrained.
Using Pepper Spray: Using pepper spray against a law enforcement officer.
Slapping: Slapping a law enforcement officer during a confrontation.
Throwing a Drink: Throwing a drink or other liquid at a law enforcement officer.
Pulling Hair: Pulling the hair of a law enforcement officer during a scuffle.
Hitting with an Object: Striking a law enforcement officer with an object such as a baton or flashlight.
Tackling an Officer: Tackling a law enforcement officer to the ground.

These examples illustrate various actions that can be considered as assault upon a person in the execution of law enforcement duties under Article 128 of the UCMJ.