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Article 128 UCMJ Assault Upon a Warrant Noncommissioned or Petty Officer

Note: This law applies only to Article 128 UCMJ Assault Upon a Warrant, Noncommissioned, or Petty Officer offenses committed on and after 1 January 2019.

What is Article 128 UCMJ Assault Upon a Warrant, Noncommissioned, or Petty Officer?

Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty OfficerArticle 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer addresses assault upon a warrant officer, noncommissioned officer (NCO), or petty officer, which involves intentionally striking, offering violence, or using disrespectful language toward these officers while they are performing their official duties. Such actions undermine military discipline and respect for authority.

Penalties for this offense can be severe, including confinement, reduction in rank, forfeiture of pay, and dishonorable discharge. Given the gravity of the charges, the accused must seek the best military defense lawyers.

Court martial lawyers are essential in navigating the complexities of military law and ensuring the accused’s rights are protected. An experienced legal team can provide a robust defense strategy, challenge the prosecution’s evidence, and work toward a favorable outcome.

For those facing charges under Article 128 UCMJ, engaging court martial lawyers like those at Gonzalez & Waddington can significantly impact the case’s outcome. Their deep understanding of military justice and proven track record in defending service members ensure that the accused receives comprehensive and effective legal representation.

Note: The maximum and minimum punishments for Article 128 UCMJ Assault Upon a Warrant, Noncommissioned, or Petty Officer vary depending on the date of the offense.

What are the Elements of Article 128 UCMJ Assault Upon a Warrant, Noncommissioned, or Petty Officer?

  1. 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);
  2. That the (attempt) (offer) (bodily harm) was done unlawfully;
  3. That the (attempt) (offer) (bodily harm) was done with force or violence;
  4. That (state the name and rank of the alleged victim) was a (warrant) (noncommissioned) (petty) officer of the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard); and
  5. That the accused then knew that (state the name and rank of the alleged victim) was a (warrant) (noncommissioned) (petty) officer of the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard).

What are the Maximum Punishments for Article 128 UCMJ Assault Upon a Warrant, Noncommissioned, or Petty Officer?

The Victim is a Warrant Officer – For offenses committed between 1 January 2019 and 27 December 2023:

  • 18 Months of Confinement
  • Dishonorable Discharge, Bad Conduct Discharge
  • Total Forfeitures
  • Reduction to E-1

The victim is a Noncommissioned or Petty Officer – For offenses 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 Upon a Warrant Noncommissioned Petty Officer offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128 UCMJ, Assault Upon a Warrant, Noncommissioned, or Petty 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 Warrant, Noncommissioned, or Petty Officer

In that Seaman Julia Rickey, US Navy, did, at or near Norfolk Navy Base, on or about 5 June 2025, assault Chief Petty Officer Sarah Silver, who then was and was then known by the accused to be a petty officer of the United States Navy, by striking Chief Petty Officer Sarah Silver in her stomach with Seaman Julia Rickey fist.

Model Specification for Article 128 UCMJ Assault Upon a Warrant, Noncommissioned, or Petty 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 (warrant) (noncommissioned) (petty) officer of the [United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard) (_______)], by __________.

What are the Definitions for Article 128 UCMJ Assault Upon a Warrant, Noncommissioned, or Petty Officer?

Assault by Attempt and Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer

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

An “assault” under Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer 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 tends to effect the intended bodily harm. Bodily harm doesn’t need to be inflicted.

“Bodily harm” under Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer 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 inflicted.

“Bodily harm” under Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer 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 Warrant Noncommissioned Petty Officer is a degree of carelessness greater than simple negligence.

“Simple negligence” under Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer is absent 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 Upon a Warrant Noncommissioned Petty Officer 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 Warrant Noncommissioned Petty 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” under Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer 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 Warrant Noncommissioned Petty Officer 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.)

Superior status/execution of office. 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.)

What is the Divestiture or Abandonment Defense in Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer Cases?

When the issue arises whether the victim’s conduct was in a manner that divested the victim of his or her status as a warrant, noncommissioned, or petty 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 (warrant), (noncommissioned) (petty) officer.

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

Circumstantial Evidence and Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty 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 (warrant) (noncommissioned) (petty) officer only if you are convinced 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 (warrant) (noncommissioned) (petty) officer.

Article 128 UCMJ Assault Upon a Warrant, Noncommissioned, or Petty Officer Military Defense Lawyers

Background of Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer

Article 128 of the Uniform Code of Military Justice (UCMJ) covers various forms of assault, including those against specific individuals in positions of authority. Assault upon a warrant officer, noncommissioned officer (NCO), or petty officer (PO) is considered a more serious offense due to the impact on military discipline and hierarchy.

Basics of Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer

To secure a conviction for assault upon a warrant officer, NCO, or PO 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.
  • Victim’s Status: The victim was a warrant officer, NCO, or PO at the time of the assault.
  • Knowledge: The accused knew or reasonably should have known that the victim was a warrant officer, NCO, or PO.
  • Duty Status: The victim was in the execution of their office at the time of the assault.

Collateral Consequences of Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer Conviction

A conviction for assault upon a warrant officer, NCO, or PO 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 Warrant Noncommissioned Petty Officer

The primary purpose of penalizing assault upon a warrant officer, NCO, or PO under Article 128 UCMJ Assault Upon a Warrant Noncommissioned Petty Officer is to maintain good order and discipline within the military. Such assaults undermine the authority and respect necessary for effective military operations. By criminalizing such behavior, the military aims to:

  • Protect service members in leadership positions from violence
  • Ensure the integrity of the military command structure
  • 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 Warrant, Noncommissioned, or Petty Officer, speak with one of our experienced military court martial lawyers to discuss your case.

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