Article 128 UCMJ Simple Assault When Committed with an Unloaded Firearm

Note: This law applies only to Article 128 UCMJ Simple Assault with Unloaded 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 an Unloaded Firearm?

Article 128 of the UCMJ addresses simple assault, including when committed with an unloaded firearm. The specific offense of Article 128 UCMJ Simple Assault with Unloaded Firearm involves using an unloaded firearm to threaten or instill fear in another person, even without causing physical harm. The presence of a firearm, regardless of its loaded status, elevates the severity of the threat and the perceived danger by the victim.

Penalties for this simple assault can be significant, potentially including confinement, forfeiture of pay, and a reduction in rank. Given these serious consequences, the accused must seek representation from the best military defense lawyers.

Court martial lawyers are adept at handling the complexities of military law, ensuring that the rights of the accused are protected throughout the legal process. They can craft a defense strategy that challenges the prosecution’s evidence, examines procedural errors, and aims to mitigate the penalties faced.

For individuals accused of Article 128 UCMJ Simple Assault with Unloaded Firearm, engaging experienced court martial lawyers like those at Gonzalez & Waddington is essential. Their comprehensive understanding of the UCMJ and court martial proceedings can significantly impact the case’s outcome, helping to navigate the legal challenges and secure a more favorable resolution.

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

What are the Elements of Article 128 UCMJ Simple Assault When Committed with an Unloaded 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 an unloaded 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 an Unloaded Firearm?

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

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

For Article 128 UCMJ Simple Assault with Unloaded Firearm 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.

Combined UCMJ Maximum Punishment Charts

Sample Specification for Article 128 UCMJ Simple Assault When Committed with an Unloaded Firearm

In that SFC Samuel Smith, US Army, did, at or near Fort Pattron, TX, on or about 18 June 2025, assault Billy Victim by pointing an unloaded firearm at him.

Model Specification for Article 128 UCMJ Simple Assault When Committed with an Unloaded 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 an Unloaded Firearm?

Assault by attempt in Article 128 UCMJ Simple Assault with Unloaded 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 apparently 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 in Article 128 UCMJ Simple Assault with Unloaded 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” in Article 128 UCMJ Simple Assault with Unloaded Firearm 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” in Article 128 UCMJ Simple Assault with Unloaded Firearm 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.)

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.

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

“Firearm” in Article 128 UCMJ Simple Assault with Unloaded 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” 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” in Article 128 UCMJ Simple Assault with Unloaded 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 an Unloaded Firearm Military Defense Lawyers

Background of Article 128 UCMJ Simple Assault with Unloaded Firearm

Article 128 of the Uniform Code of Military Justice (UCMJ) deals with assault offenses. Simple assault under Article 128 involves an attempt or offer with unlawful force or violence to do bodily harm to another person, regardless of whether the attempt or offer is consummated. When an unloaded firearm is involved, the offense is still considered serious due to the potential for fear and harm.

Basics of Article 128 UCMJ Simple Assault with Unloaded Firearm

To convict a service member of simple assault when committed with an unloaded firearm under Article 128, the prosecution must prove the following elements beyond a reasonable doubt:
1. The accused attempted or offered to do bodily harm to a certain person.
2. The accused did so with unlawful force or violence.
3. The assault was committed with a firearm.
4. The firearm was unloaded at the time of the assault.
5. The act was done with unlawful intent.

Collateral Consequences of Article 128 UCMJ Simple Assault with Unloaded Firearm Conviction

A conviction for Article 128 UCMJ Simple Assault with Unloaded Firearm can lead to several collateral consequences, including:

Employment Issues: Difficulty obtaining civilian employment due to the nature of the conviction.
Loss of Benefits: Potential loss of military benefits, including retirement pay, VA benefits, and healthcare.
Reputation Damage: Significant damage to personal and professional reputation.
Civil Liability: Possible civil lawsuits from the victim for damages.

Purpose of Article 128 UCMJ Simple Assault with Unloaded Firearm

The primary purpose of penalizing simple assault committed with an unloaded firearm under Article 128 is to maintain good order and discipline within the military. This law of Article 128 UCMJ Simple Assault with Unloaded Firearm aims to:

Protect Victims: Ensure that service members can work and live in an environment free from threats of violence.
Promote Respect: Foster a culture of respect and professionalism within the ranks.
Deter Misconduct: Deter potential offenders by highlighting the serious consequences of such behavior.
Maintain Discipline: Uphold the standards of conduct necessary for military readiness and effectiveness.

In summary, Article 128’s provisions on simple assault with an unloaded firearm enforce the military’s commitment to a safe and disciplined environment, enhancing overall mission readiness and effectiveness.

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