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Article 128 UCMJ Assault with Intent to Commit Certain Offenses

Note: This law applies only to Article 128 UCMJ Assault with Intent to Commit Certain Offenses offenses committed on and after 1 January 2019.

What is Article 128 UCMJ Assault with Intent to Commit Certain Offenses?

Article 128 UCMJ Assault with Intent to Commit Certain OffensesArticle 128 of the UCMJ addresses assault with intent to commit certain offenses, such as murder, voluntary manslaughter, rape, robbery, or sodomy. This crime involves an assault carried out with the specific intent to commit one of these serious offenses. The penalties for such an assault are severe and can include long-term confinement, dishonorable discharge, and forfeiture of pay.

Those accused of this crime should seek representation from the best military defense lawyers. Skilled court-martial lawyers are crucial for navigating the complexities of military law, challenging the evidence, and protecting the accused’s rights throughout the legal process. The experienced team at Gonzalez & Waddington provides the necessary expertise to build a robust defense and work towards a favorable outcome, potentially mitigating the harsh penalties of this serious charge.

Engaging experienced court-martial lawyers is essential to ensure a comprehensive defense strategy. They understand the nuances of military law and can effectively challenge the prosecution’s case, aiming to achieve the best possible outcome for the accused.

Note: The maximum and minimum punishments for Article 128 UCMJ Assault with Intent to Commit Certain Offenses vary depending on the date of the offense.

What are the Elements of Article 128 UCMJ Assault with Intent to Commit Certain Offenses?

  1. That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by (state the manner of the assault or battery alleged); and
  2. That, at the time, the accused intended to (kill) [commit (rape) (Rape of a Child) (sexual assault) (sexual assault of a child) (robbery) (arson) (burglary) (kidnapping)].

What is the Maximum Punishment for Article 128 UCMJ Assault with intent to commit murder, rape, or rape of a child?

NOTE: Pursuant to his authority under Article 56(a), the President did not establish a maximum punishment for assault with intent to commit sexual assault or sexual assault of a child until the signing of EO14103 effective 28 July 2023. To determine the maximum punishment for assault with intent to commit sexual assault or sexual assault of a child before 28 July 2023, see RCM 1003(c) and US v Beaty, 70 MJ 39 (CAAF 2011).

For offenses committed between 1 January 2019 and 27 December 2023:

  • 20 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 Assault with intent to commit murder, rape, or rape of a child 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 Assault with intent to commit voluntary manslaughter, sexual assault, robbery, arson, burglary, sexual assault of a child, or kidnapping?

NOTE: Under his authority under Article 56(a), the President did not establish a maximum punishment for assault with intent to commit sexual assault or sexual assault of a child until the signing of EO14103 effective 28 July 2023. To determine the maximum punishment for assault with intent to commit sexual assault or sexual assault of a child before 28 July 2023, see RCM 1003(c) and US v Beaty, 70 MJ 39 (CAAF 2011).

For Article 128 UCMJ Assault with Intent to Commit Certain Offenses committed between 1 January 2019 and 27 December 2023:

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

For Article 128 UCMJ Assault with Intent to Commit Certain Offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128 UCMJ Assault with intent to commit voluntary manslaughter, sexual assault, robbery, arson, burglary, sexual assault of a child, or kidnapping
    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 Assault with Intent to Commit Certain Offenses

In that PFC Nick Cullen, US Army, did, at or near Fort Sill, Oklahoma, on or about 2 August 2024, with intent to commit burglary, assault James Dean by striking at him with a machete.

Model Specification for Article 128 UCMJ Assault with Intent to Commit Certain Offenses

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about _______, with intent to commit (murder) (voluntary manslaughter) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (robbery) (arson) (burglary) (kidnapping), assault _______ by (striking at (him) (her) with a ________).

What are the definitions of Article 128 UCMJ Assault with Intent to Commit Certain Offenses?

Assault by attempt. If the specification alleges (or the facts indicate) 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. 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 (or the facts indicate) an offer to do bodily harm, give the following instruction:

An “assault” under Article 128 UCMJ Assault with Intent to Commit Certain Offenses 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, by an intentional act or omission, which created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm. It is not necessary that bodily harm be actually inflicted.

Do not provide this instruction when an intent to commit murder or voluntary manslaughter is charged. Otherwise, provide the instruction): Specific intent to inflict bodily harm is not required.

“Bodily harm” under Article 128 UCMJ Assault with Intent to Commit Certain Offenses 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.

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 with Intent to Commit Certain Offenses

If the specification alleges (or the facts indicate) 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 act or omission.

“Bodily harm” under Article 128 UCMJ Assault with Intent to Commit Certain Offenses 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.

Elements of offense allegedly intended and Article 128 UCMJ Assault with Intent to Commit Certain Offenses

Give the following instructions in each Article 128 UCMJ Assault with Intent to Commit Certain Offenses case:

Proof that the offense of (state the offense allegedly intended) occurred or was committed by the accused is not required. However, you must be convinced beyond a reasonable doubt that, at the time of the assault described in the specification, the accused had the specific intent to commit (state the offense allegedly intended). The elements of that offense are as follows: (state the elements of the offense intended).

Intent to commit murder or voluntary manslaughter and Article 128 UCMJ Assault with Intent to Commit Certain Offenses

If the accused is charged with assault to commit murder or voluntary manslaughter, the military judge must instruct that the accused must have had the specific intent to kill; an intent to only inflict great bodily harm is not sufficient. US v. Roa, 12 MJ 210 (CMA 1982).

The following instruction should be given after the elements of the offense intended when the intended offense is murder or voluntary manslaughter:

To convict the accused of this offense, proof that the accused only intended to inflict great bodily harm upon the alleged victim is not sufficient. The prosecution must prove beyond a reasonable doubt that the accused specifically intended to kill (state the name of the alleged victim).

Article 128 UCMJ Assault with Intent to Commit Certain Offenses Military Defense Lawyers

Background of Article 128 UCMJ Assault with Intent to Commit Certain Offenses

Article 128 of the Uniform Code of Military Justice (UCMJ) encompasses various forms of assault, including assault with intent to commit certain offenses. This provision addresses situations where an individual commits an assault with the specific intent to commit a more serious offense, such as murder, rape, robbery, or other serious crimes. The intent to commit these serious offenses elevates the severity of the assault, reflecting the heightened threat to the victim and the potential for greater harm.

Basics of Article 128 UCMJ Assault with Intent to Commit Certain Offenses

To secure a conviction for assault with intent to commit certain offenses under Article 128, the prosecution must prove the following elements beyond a reasonable doubt:

  • Assault: The accused committed an assault, defined as an attempt or offer with unlawful force or violence to do bodily harm to another person.
  • Intent: The accused had the specific intent to commit a more serious offense, such as murder, rape, robbery, or another serious crime, at the time of the assault.

The specific intent to commit the underlying serious offense is critical to this charge. The prosecution must demonstrate that the accused’s actions were directed towards achieving the commission of the intended offense.

Punishments for Article 128 UCMJ Assault with Intent to Commit Certain Offenses

The punishments for assault with intent to commit certain offenses under Article 128 can be severe, reflecting the gravity of the intended crime. Possible punishments include:

  • Confinement for a period determined by the nature of the intended offense (potentially up to life imprisonment for the most serious offenses)
  • Reduction in rank
  • Forfeiture of pay and allowances
  • Dishonorable discharge or bad conduct discharge

The specific punishment for Article 128 UCMJ Assault with Intent to Commit Certain Offenses will depend on the circumstances of the case, including the severity of the intended offense and the impact on the victim and the military community.

Collateral Consequences of Article 128 UCMJ Assault with Intent to Commit Certain Offenses Conviction

A conviction for assault with intent to commit certain offenses can have numerous collateral consequences, including:

  • Employment Challenges: Difficulty obtaining civilian employment due to the nature of the conviction and any resulting discharge status.
  • Loss of Military Benefits: Loss of military benefits, including retirement pay, VA benefits, and healthcare.
  • Reputation Damage: Significant damage to personal and professional reputation.
  • Civil Liability: Potential civil lawsuits from the victim for damages.
  • Sex Offender Registration: Depending on the intended offense, mandatory registration as a sex offender.

These collateral consequences of Article 128 UCMJ Assault with Intent to Commit Certain Offenses can profoundly impact the accused’s future, making it essential to understand the severity of the charge and the importance of a robust defense.

Purpose of Article 128 UCMJ Assault with Intent to Commit Certain Offenses

The primary purpose of penalizing assault with intent to commit certain offenses under Article 128 is to maintain good order and discipline within the military. Assaults intended to lead to more serious crimes pose a significant threat to the safety and well-being of service members and undermine the integrity of military operations. By criminalizing such behavior, the military aims to:

  • Protect Service Members: Ensure the safety and well-being of service members by deterring violent behavior.
  • Promote Respect: Foster a culture of respect and professionalism within the ranks.
  • Deter Potential Offenders: Deter potential offenders by highlighting the serious consequences of such behavior.
  • Uphold Standards: Uphold the standards of conduct necessary for military readiness and effectiveness.

By addressing assaults with intent to commit serious offenses, the military seeks to create a safe and disciplined environment essential for operational success.

Additional Resources

For more information on military law and the UCMJ, you can visit the following authoritative websites:

If you are suspected or accused of Article 128 UCMJ Assault with Intent to Commit Certain Offenses, speak with one of our experienced military court martial lawyers to discuss your case.

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