Article 128 UCMJ Simple Assault When Committed with a Loaded Firearm

Note: This law applies only to Article 128 UCMJ Simple Assault When Committed with Loaded Firearm offenses committed on and after 1 January 2019.

Effective 28 July 2023, the President signed EO 14103, which (1) added “other dangerous weapon” and “loaded firearm” as sentence escalators and (2) modified the maximum punishment when this offense is committed with an “unloaded firearm.” The below-listed maximum punishments are copied directly from the 2024 MCM. WARNING: Careful attention must be paid to the offense, referral, and EO dates to determine the applicable maximum punishment in each case. Under certain circumstances, the maximum punishments listed below may not be applicable, and reference to prior versions of the MCM may be necessary to calculate the maximum punishment.

What is Article 128 UCMJ Simple Assault When Committed with a Loaded Firearm?

Article 128 of the UCMJ addresses simple assault, including when committed with a loaded firearm. The crimes of Article 128 UCMJ Simple Assault When Committed with Loaded Firearm involves threatening or attempting to cause bodily harm to another person using a loaded firearm. The presence of a firearm significantly increases the severity of the charge, leading to more severe penalties.

Anyone facing this charge should seek the best military defense lawyers due to the complexities of military law and the serious consequences of a conviction. Experienced court martial lawyers can develop a robust defense, challenge the prosecution’s evidence, and protect the accused’s rights.

Engaging knowledgeable legal counsel like those at Gonzalez & Waddington is crucial for effectively navigating court-martial proceedings. They can provide comprehensive defense strategies to mitigate the severe penalties associated with such charges.

Note: The maximum and minimum punishments for Article 128 UCMJ Simple Assault When Committed with a Loaded Firearm vary depending on the date of the offense.

What are the Elements of Article 128 UCMJ Simple Assault When Committed with a Loaded Firearm?

That (state the time and place alleged), the accused (attempted) (offered) to do bodily harm to (state the name of the alleged victim) by (state the manner alleged);
That the (attempt) (offer) was done unlawfully; (and)
That the (attempt) (offer) was done with force or violence; and
That the (attempt) (offer) was done with a loaded firearm.

What are the Types of Article 128 UCMJ Simple Assault?

Article 128 UCMJ Simple Assault
Article 128 UCMJ Simple Assault When Committed with an Unloaded Firearm
Article 128 UCMJ Simple Assault When Committed with Loaded Firearm

What are the Maximum Punishments for Article 128 UCMJ Simple Assault When Committed with a Loaded Firearm?

For Article 128 UCMJ Simple Assault When Committed with Loaded Firearm offenses committed between 1 January 2019 and 27 December 2023:

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

For Article 128 UCMJ Simple Assault When Committed with Loaded Firearm offenses committed after 27 December 2023

No Offense Category Specified in the Sentencing Parameters
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 Simple Assault When Committed with a Loaded Firearm

In that, Amn Lucy Bates, US Air Force, did, at or near Scott Air Force Base, Illinois, on or about 18 June 2025, assault Johnny Rocket Victim by pointing a loaded firearm at him.

Model Specification for Article 128 UCMJ Simple Assault When Committed with a Loaded Firearm

In that _______ (personal jurisdiction data), did, (at/on board–location), on or about ______, assault _______ by (striking at him/her with a ______) (_______).

What are the Definitions for Article 128 UCMJ Simple Assault When Committed with a Loaded Firearm?

Assault by attempt under Article 128 UCMJ Simple Assault When Committed with Loaded Firearm. 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 tends to effect the intended bodily harm. Bodily harm doesn’t need to be 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 under Article 128 UCMJ Simple Assault When Committed with Loaded Firearm. 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” 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.

What is a Forearm under Article 128 UCMJ Simple Assault When Committed with Loaded Firearm

If a firearm or dangerous weapon is alleged, the below instruction may be appropriate.

“Firearm” means any weapon that is designed to or may be readily converted to expel any projectile by the action of an explosive.

A weapon is a “dangerous weapon” under Article 128 UCMJ Simple Assault When Committed with Loaded Firearm when used in a manner capable of inflicting death or grievous bodily harm. What constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to kill or inflict grievous bodily harm.

“Grievous bodily harm” under Article 128 UCMJ Simple Assault When Committed with Loaded Firearm means a bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Article 128 UCMJ Simple Assault When Committed with a Loaded Firearm Military Defense Lawyers

Background of Article 128 UCMJ Simple Assault When Committed with a Loaded Firearm

Article 128 of the Uniform Code of Military Justice (UCMJ) addresses the offense of assault. Under the UCMJ, assault is divided into various categories based on the severity and circumstances of the act. One specific category is simple assault when committed with a loaded firearm. This provision underscores the seriousness of assaults involving dangerous weapons, especially firearms.

Basics of Article 128 UCMJ Simple Assault When Committed with Loaded Firearm

To convict a service member of Article 128 UCMJ Simple Assault When Committed with Loaded Firearm, the prosecution must prove the following elements beyond a reasonable doubt:

The accused committed an assault.
The assault was carried out with a loaded firearm.
The act was intentional and without legal justification or excuse.

Collateral Consequences of Article 128 UCMJ Simple Assault When Committed with Loaded Firearm Conviction

A conviction for simple assault with a loaded firearm under Article 128 can have numerous collateral consequences, including:

Difficulty obtaining civilian employment due to the nature of the conviction.
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.
Possible prohibition on owning or possessing firearms in the future.

Purpose of Article 128 UCMJ Simple Assault When Committed with Loaded Firearm

The primary purpose of penalizing simple assault with a loaded firearm under Article 128 is to maintain good order and discipline within the military. The military environment requires high trust and respect among service members. Assaults involving firearms pose a significant threat to this trust and the safety of all personnel. By criminalizing such behavior, the military aims to:

Ensure the safety of service members by deterring dangerous conduct.
Maintain a professional and disciplined military force.
Promote respect for the rule of law and military regulations.
Uphold the standards of conduct necessary for military readiness and effectiveness.

If you are suspected or accused of Article 128 UCMJ Simple Assault When Committed with Loaded Firearm, speak with one of our experienced military court martial lawyers to discuss your case.