Article 128 UCMJ Simple Assault

Facing a court-martial, UCMJ action, Administrative Separation Board, or other Adverse Administrative Action for Article 128 UCMJ Simple Assault? 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 Simple Assault 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 maximum punishments listed below 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?

Article 128 UCMJ Simple Assault addresses simple assault, which involves attempting or offering to cause bodily harm to another person. This offense can be committed through various actions, including using force or violence, threatening with a weapon, or making a credible threat of violence. Manual for Courts-Martial, United States (2024 ed.)

The penalties for simple assault can vary based on the severity of the act and the circumstances surrounding it. Convictions may result in confinement, forfeiture of pay, and other disciplinary actions.

Anyone accused of simple assault under Article 128 UCMJ should seek representation from the best military defense lawyers. Court martial lawyers are essential for navigating the intricacies of military law, protecting the accused’s rights, and developing a robust defense strategy.

The guidance of experienced court martial lawyers, such as those at Gonzalez & Waddington, is crucial for those facing such charges. Their thorough understanding of military legal proceedings and their ability to challenge evidence and procedural errors can significantly influence the case outcome, potentially mitigating the severity of the penalties.

Note: The maximum and minimum punishments for Article 128 UCMJ Simple Assault vary depending on the date of the offense.

What are the Elements of Article 128 UCMJ Simple Assault?

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.

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?

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

3 Months of Confinement
Forfeiture of 2/3 pay for 3 months
Reduction to E-1

Article 128 UCMJ: Simple Assault – Maximum Punishments

Offenses committed from 1 Jan 2019 to 27 Dec 2023: 2/3 x 3 months, 3 months, E1
Offenses committed after 27 Dec 2023: Category 1 Offense – Confinement from 0-12 months

For offenses committed after 27 December 2023

Under the Sentencing Parameters, Article 128 UCMJ Simple Assault is a Category 1 Offense – Confinement from 0-12 months
Forfeiture of 2/3 pay for 3 months
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 Simple Assault

In that PFC Joe Blow, US Army, did, at or near Joint Base Lewis-McChord, on or about 1 Jan 2025, assault PFC Michael Tyson by striking at him with a closed fist.

Model Specification for Article 128 UCMJ Simple Assault

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?

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

An “assault” under Article 128 UCMJ Simple 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” in Article 128 UCMJ Simple Assault 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

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 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 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.)

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.

Article 128 UCMJ Simple Assault Military Defense Lawyers

Background of Article 128 UCMJ Simple Assault

Article 128 of the Uniform Code of Military Justice (UCMJ) addresses the offense of assault, which includes both simple assault and aggravated assault. Simple assault refers to the act of attempting or offering to use unlawful force or violence against another person. It does not require physical contact but must create a reasonable apprehension of imminent harm in the victim.

Basics of Article 128 UCMJ Simple Assault

To secure a conviction for simple assault under Article 128, the prosecution must prove the following elements beyond a reasonable doubt:

Act: The accused attempted or offered to use unlawful force or violence against another person.
Intent: The accused intended to inflict bodily harm or cause fear of imminent harm.
Reasonable Apprehension: The victim reasonably believed that the accused could inflict harm and that harm was imminent.

Collateral Consequences of a Conviction

A conviction for simple assault under Article 128 can have several collateral consequences, including:

Employment Issues: Difficulty obtaining civilian employment due to a criminal record.
Loss of Military Benefits: Potential loss of military benefits, including retirement pay and healthcare.
Reputation Damage: Damage to personal and professional reputation.
Limitations on Rights: Potential limitations on the right to own or possess firearms.

Purpose of Article 128 UCMJ Simple Assault

The primary purpose of Article 128 UCMJ Simple Assault is to maintain good order and discipline within the military. Assaultive behavior undermines trust and respect among service members and can negatively impact unit cohesion and operational effectiveness. By criminalizing such conduct, the military aims to:

Protect Victims: Ensure the safety and well-being of all service members.
Promote Respect: Foster a culture of respect and professionalism.
Deter Misconduct: Deter potential offenders by highlighting the serious consequences of assaultive behavior.
Maintain Discipline: Uphold the standards of conduct necessary for military readiness and effectiveness.

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

Fictional fact patterns that could violate Article 128 UCMJ Simple Assault:

Article 128 UCMJ Simple Assault: During a heated argument at a barracks party, Petty Officer Johnson shoves Seaman Apprentice Davis, causing them to fall and bruise their arm.
Article 128 UCMJ Simple Assault: Lieutenant Commander Smith, frustrated with a subordinate’s performance, throws a stack of papers at the sailor, narrowly missing their head.
Article 128 UCMJ Simple Assault: During a training exercise, Sergeant Jones intentionally trips Private Wilson, causing them to fall and twist their ankle.
Article 128 UCMJ Simple Assault: While playing basketball on base, Airman First Class Brown intentionally elbows Airman Basic Green in the face, resulting in a bloody nose.
Article 128 UCMJ Simple Assault: After a disagreement at a bar, Corporal Baker swings a punch at Lance Corporal Carter but misses, causing Carter to fear immediate bodily harm.
Article 128 UCMJ Simple Assault: During a routine inspection, Chief Petty Officer Adams aggressively shoves Seaman Recruit Baker out of the way, causing them to stumble and scrape their knee.
Article 128 UCMJ Simple Assault: Lieutenant Colonel Davis, angered by a perceived insult, spits in the face of Major Edwards during a staff meeting.
Article 128 UCMJ Simple Assault: During a training simulation, Staff Sergeant Green fires a blank round at close range towards Private First Class White, causing them to flinch and feel threatened.
Article 128 UCMJ Simple Assault: Petty Officer Second Class Thompson, in a fit of rage, throws a coffee mug at Petty Officer Third Class Lopez, shattering it against the wall near their head.
Article 128 UCMJ Simple Assault: During a verbal altercation in the chow hall, Airman Jones throws a tray of food at Airman Smith, splattering them with food and causing them to slip and fall.

Each of these scenarios involves the attempted or threatened use of unlawful force or violence, which are the key elements of an Article 128 UCMJ Simple Assault charge.