Article 128 UCMJ – Assault and Aggravated Assault
Article 128 of the Uniform Code of Military Justice covers assault, aggravated assault, and assault with a dangerous weapon or means likely to produce death or grievous bodily harm. This is one of the most common violent offense articles in military law, and it captures everything from minor shoving matches in the barracks to life-threatening attacks involving weapons, vehicles, knives, fists, or firearms.
In today’s military, Article 128 charges arise from bar fights, domestic disputes, alcohol-fueled confrontations, training mishaps, and split-second decisions during high-stress situations. Many cases involve conflicting stories, intoxication, mutual combat, self-defense claims, or exaggerated allegations made after a relationship breaks down.
For service members stationed in or connected to Florida, Article 128 cases often involve off-base conflicts in nightlife districts, domestic disputes that begin as emotional arguments, and situations where local police and military authorities conduct parallel investigations. Body camera footage, 911 calls, and Florida police reports frequently become the backbone of the government’s case.
This guide breaks down the elements, maximum punishments, common patterns, investigative issues, and defense strategies used by Gonzalez & Waddington in real Article 128 cases. To explore the full UCMJ system, return to the main hub at UCMJ Articles 77–134 Guide.
Article 128 – Full Legal Breakdown
Article 128 is divided into several categories of assault. Each carries its own elements and potential maximum punishments. The categories include:
- Simple Assault
- Aggravated Assault (dangerous weapon or dangerous means)
- Assault consummated by battery
- Assault intentionally inflicting grievous bodily harm
- Assault on a spouse or intimate partner (charged under Article 128b)
Unlike Article 120, which focuses on sexual acts, Article 128 centers on physical contact, threats, and violent conduct. Most cases turn on intent, the amount of force used, and whether a weapon or dangerous instrument was involved.
Simple Assault
Simple assault occurs when a person attempts or offers to do bodily harm to another without lawful justification or excuse. No physical contact is required—threatening gestures or swinging a fist and missing can be enough.
The government must prove:
- The accused attempted or offered to inflict bodily harm on another person
- The act was done unlawfully
- The act was done with force or violence
Maximum punishments include confinement, reduction in grade, forfeitures, and a punitive discharge depending on aggravating factors. Simple assault is often charged alongside drunk and disorderly conduct, domestic disputes, or fights between service members.
Assault Consummated by Battery
Assault consummated by battery requires actual physical contact. Examples include pushing, slapping, punching, grabbing, or unwanted physical touching.
To convict, the government must prove:
- A physical touching occurred
- The touching was unlawful
- The touching was done with force or violence
Battery charges often arise from domestic disputes or bar fights. The biggest defense issues are consent, self-defense, mutual combat, and credibility of witnesses.
Aggravated Assault – Dangerous Weapon or Means Likely to Produce Death or Grievous Bodily Harm
This is one of the most serious forms of assault short of attempted murder. It applies when:
- A weapon such as a knife, firearm, bat, or vehicle was used
- The accused used force likely to cause death or severe injury
- The manner of the assault demonstrated dangerous intent
Prosecutors frequently use this charge when the accused allegedly:
- Choked or strangled someone
- Used a car in a threatening way
- Swung or brandished a knife or bottle
- Used a firearm recklessly or pointed it at someone
- Beat someone significantly while wearing boots or using an object
Maximum punishments include years of confinement and a dishonorable discharge.
Assault Intentionally Inflicting Grievous Bodily Harm
This offense applies when the accused intentionally causes serious, debilitating, or long-term injuries. These may include:
- Broken bones
- Facial fractures
- Severe lacerations
- Injuries requiring surgery
- Life-threatening internal injuries
Even if no weapon was used, intent to cause serious harm elevates the charge dramatically. The government relies heavily on medical records, expert testimony, and photographs to prove injury severity and intent.
Assault in Domestic or Intimate Partner Context
Although domestic violence has its own article (128b), many cases start as Article 128 before prosecutors decide whether to elevate the charge. Evidence often includes:
- 911 calls
- Body camera footage from Florida officers
- Text messages, voicemails, and threats
- Medical records of the alleged victim
Domestic assault allegations often involve chaotic scenes, intoxication, conflicting statements, and claims of self-defense or mutual combat.
Maximum Punishments under Article 128
Punishments vary widely depending on the type of assault:
- Simple assault: up to 3 months confinement, forfeitures, and reduction
- Assault consummated by battery: up to 6 months confinement
- Assault with dangerous weapon: several years confinement + dishonorable discharge
- Assault inflicting grievous bodily harm: up to 10 years confinement or more
Even at the low end, an Article 128 conviction can destroy promotions, security clearances, and future civilian opportunities. At the high end, it becomes a life-altering event.
How Prosecutors Try to Prove Article 128 Cases
Prosecutors often rely on:
- Injuries documented by medical personnel
- Statements from alleged victims made while emotional or intoxicated
- Witness testimony from people who saw parts of the incident
- Body camera footage (especially in Florida cases)
- 911 calls and frantic statements
- Digital messages, threats, and photos
Many Article 128 cases include conflicting accounts. Prosecutors typically frame this as the accused trying to “minimize” or “deny responsibility,” while the alleged victim is portrayed as consistent even when they are not.
Common Misunderstandings in Article 128 Cases
- Any physical contact is not automatically battery. The government must prove unlawful intent.
- Mutual combat exists. If both parties agreed to fight, the legal analysis changes.
- Self-defense is not uncommon. Many service members defend themselves physically when attacked first.
- Injuries do not prove intent. Accidental injuries in chaotic fights can still be used unfairly as evidence of assault.
- Alcohol can distort memory. Witnesses often misremember sequences, threats, or who escalated first.
Branch Differences in Article 128 Enforcement
- Army: common in barracks fights, field training, and domestic cases.
- Marine Corps: high frequency due to tight barracks living and alcohol culture.
- Navy: often linked to liberty incidents in port cities.
- Air Force/Space Force: fewer cases but often more documentation and surveillance footage.
- Coast Guard: cases tied to maritime operations and confined crew environments.
Florida-Specific Article 128 Patterns
Florida produces unique assault patterns due to:
- Nightlife and alcohol near bases
- Cramped off-base housing
- Tourist-heavy environments
- Interaction with local police who always record bodycam footage
Florida’s bodycam-first environment means the defense often has more evidence to work with than in other states—if it is requested early and preserved effectively.
Real World Article 128 Military Scenarios
Article 128 charges arise in every environment across the services. Some involve obvious violence. Most fall into gray areas where intoxication, misunderstanding, emotion, or split-second decisions create confusion and inconsistency. These scenarios illustrate the range of cases that become criminal when commands want accountability or when witnesses exaggerate or misremember the event.
- A Marine at a Florida beach town gets into a heated argument with a civilian outside a bar. The civilian steps forward, the Marine raises his hands defensively, and the civilian falls backward tripping over a curb. Police arrest the Marine and claim he struck the civilian. Body camera footage tells a different story, but the command still pursues Article 128 charges.
- An Army NCO intervenes in a barracks fight and tries to separate two drunk soldiers. One accuses the NCO of slamming him into a locker. The NCO insists he was restraining, not assaulting. Alcohol, chaos, and unreliable witnesses make the truth unclear.
- A sailor in Jacksonville argues with his spouse during a late-night disagreement. Police respond to a noise complaint. The spouse, emotional and upset, tells officers the sailor shoved her. The next day she wants to recant. NCIS still pursues assault charges.
- A special operations member allegedly “chokes” a teammate while they wrestle after drinking. Witnesses say it looked playful. One claims it “looked dangerous.” The government charges aggravated assault by strangulation.
- During field training, a soldier accidentally strikes another soldier in the face with a rifle muzzle while ordering them to move. A safety officer calls it negligent. A commander calls it reckless. Prosecutors charge Article 128 aggravated assault with a dangerous weapon.
- Two Air Force members argue over a parking spot in a Florida apartment complex. One slaps away the other’s phone during an argument. The government charges assault consummated by battery.
- A service member throws a drink at another person in a nightclub. The splash causes no injury. The club security calls the police. The command frames it as intentional offensive touching constituting battery.
- A junior enlisted member claims a senior NCO punched him in the chest during corrective training. The NCO claims it was a tap to get attention. Witnesses give inconsistent descriptions. Article 128 charges follow.
- A Coast Guardsman on a cutter pushes a drunk crewmember away from a ladderwell to prevent him from falling. The crewmember later claims he was shoved aggressively. The command charges assault based on the “dangerous environment.”
- Two Marines engage in mutual combat behind the barracks. One loses badly and later claims he was attacked without warning. Multiple witnesses are too drunk to recall accurately.
- An officer allegedly swings a handheld radio during an argument, accidentally striking someone. The government charges aggravated assault with a dangerous instrument.
- A soldier attempts to drive away from a confrontation. A witness claims the soldier “accelerated toward” him. The soldier insists he was escaping danger. Prosecutors charge assault with a vehicle.
- An intoxicated couple wrestles playfully in their apartment. Neighbors call police. The partner, frightened by the police presence, accuses the service member of grabbing too hard. Article 128 charges follow even though both were drunk and inconsistent.
- During an arrest on a Florida street, a service member resists being handcuffed and bumps an officer. This becomes an alleged assault on law enforcement, which the command treats severely.
- During realistic training, a service member strikes another with an FTX prop weapon too forcefully. Injury results. Command sees poor supervision and charges aggravated assault.
These scenarios demonstrate the importance of context: alcohol, angles, witness reliability, lighting, adrenaline, injuries, and the behavior of all parties. Most Article 128 cases are not about malicious violence—they are about human behavior in stressful moments.
Investigation Phase – How Article 128 Cases Are Built
Assault investigations are driven by statements, injuries, and officer observations. Commands often overreact, treating even minor physical contact as criminal. A strong defense requires understanding exactly how these cases are built.
Initial Complaint and First Impressions
Many Article 128 cases start with:
- 911 calls
- Body-worn camera footage from responding officers
- Command-directed reports
- Immediate statements made by intoxicated, angry, or emotional individuals
- Third-party reports where a witness exaggerates or misinterprets what they saw
These first impressions often become the foundation for all later decisions—even when they are wrong. Commands rely heavily on initial statements made in chaos, intoxication, or fear rather than on sober, consistent recollections.
Role of Civilian Police in Florida
Florida law enforcement plays a major role in many Article 128 cases. Police in Florida:
- Always record body camera footage
- Often make arrests to avoid liability
- Document injuries aggressively
- Capture emotional statements in real time
- Forward reports to military commands
Bodycam footage often contradicts the written police report. The defense must obtain the video early before prosecutors develop a narrative around the report rather than the footage.
Military Investigators: CID, NCIS, OSI, CGIS
Military investigators take over after police involvement or command notification. They tend to accept alleged victims’ statements at face value, even when inconsistent or illogical. Common investigative steps include:
- Multiple interviews of alleged victims
- Photographs of injuries (real or exaggerated)
- Sworn statements from witnesses who saw fragments of the event
- Extraction of digital messages, threats, or apologies
- Review of surveillance footage from bars, apartments, or parking lots
- Coordination with Florida prosecutors if civilian charges were filed
These agencies rarely explore self-defense or mutual combat unless forced by the defense.
Medical Evidence and Injury Documentation
Injury documentation is a central part of Article 128 cases. However, not all injuries support the prosecution:
- Bruises may come from unrelated activities such as workouts or accidental bumps
- Redness photographed hours later may fade or shift, leading to misinterpretation
- Hospital notes often repeat what the patient said, not scientific conclusions
- Doctors sometimes assume “assault” because that is the word used by responding officers
The defense must compare medical documentation with timelines, witness accounts, and the mechanics of injury to expose inconsistencies.
Digital Forensics and Communication Analysis
Phones, messages, and social media play an underrated but central role in assault cases. Investigators often seize:
- Text threads between the parties
- Threatening messages or arguments
- Photos of injuries sent to friends or family
- Snapchat videos, Instagram messages, or Facebook posts
- Audio recordings made during arguments
These digital records may show:
- Both parties were yelling and pushing each other
- The alleged victim apologized or admitted they started the fight
- Witnesses discussing a completely different version of events
- Intentional exaggeration or calculated reporting
Common Investigative Biases in Article 128 Cases
- Assuming the first caller is the victim: In many fights, the more intoxicated or more injured party is not the aggressor.
- Over-belief in emotional statements: What people say during arguments or while drunk is often inaccurate or contradictory.
- Ignoring context: Investigators often disregard mutual combat or self-defense if they think someone “looks guilty.”
- Misinterpreting injuries: Minor or accidental injuries are sometimes treated as deliberate acts.
- Pressure to charge domestic assault: Commands are trained to treat domestic cases harshly to avoid public criticism.
Preserving Favorable Evidence Early
Defense teams must move quickly to preserve:
- Body camera footage before it is deleted or overwritten
- 911 call recordings capturing tone and context
- Screenshots of conversations before accounts are deleted
- Witness names and numbers, especially civilian witnesses
- Security camera footage from apartments, bars, or parking garages
The military rarely collects exculpatory evidence unless the defense demands it.
How Gonzalez & Waddington Defend Article 128 Cases
Assault cases are rarely about clear-cut violence. They are about emotion, alcohol, conflicting accounts, and incomplete evidence. Gonzalez & Waddington approach Article 128 cases with a focus on dismantling assumptions, exposing inconsistencies, and reframing the government’s theory of the case. A successful defense depends on narrative control, forensic clarity, and aggressive evidence review.
Developing a Defense Theory That Fits the Evidence
A strong Article 128 defense theory must address:
- The accused’s actions
- The alleged victim’s behavior before, during, and after the incident
- The role alcohol or emotional escalation played
- What witnesses actually saw versus what they assume
- The mechanical likelihood of the alleged injuries
The theory must fit every fact in the case—messages, injuries, witness statements, bodycam footage, and timing. The prosecution’s story often falls apart once those facts are placed in their proper context.
Cross Examination of the Alleged Victim
Cross examination must be controlled, respectful, and surgical. Key points include:
- Highlighting contradictions between initial emotional statements and later accounts
- Comparing injuries to the alleged mechanism of harm
- Exploring motives such as relationship anger, jealousy, retaliation, or fear of consequences
- Exposing exaggeration, selective memory, or inconsistencies
- Bringing out behavior after the incident, such as continued socializing or lack of concern
Cross Examination of Witnesses
Most witnesses in assault cases are intoxicated, distracted, or only saw fragments of an event. Cross examination focuses on:
- How much alcohol the witness consumed
- What they actually saw versus what they assumed
- Lighting, distance, and visual obstructions
- Conflicting statements among multiple witnesses
- Biases or relationships with either party
Using Body Camera Video to Challenge the Government’s Narrative
Florida body camera footage is a goldmine for the defense. It often shows:
- The alleged victim calm and composed, not fearful or injured
- Inconsistencies between the initial accusation and visible injuries
- Police misinterpreting or exaggerating events
- Witness statements that contradict later versions
- A chaotic environment where no one truly saw what happened
Juries trust video more than words. This is one of the strongest tools available.
Using Medical and Forensic Analysis
Not all injuries support prosecution claims. Gonzalez & Waddington use medical experts to show:
- An injury is inconsistent with being punched, slapped, or choked
- A bruise could not have formed in the timeframe alleged
- Scratches are consistent with defensive movement, not attack
- Injuries do not match the alleged amount of force
Small inconsistencies often destroy the government’s credibility.
Self Defense and Mutual Combat
Many Article 128 cases turn on self-defense or mutual combat. The defense must show:
- The alleged victim was the aggressor
- The accused reasonably believed they were in danger
- Force used was proportional to the threat
- Both parties engaged willingly in a fight
The government often fails to investigate these possibilities unless forced.
Attacking the Government’s Intent Theory
For the government to win, they must prove unlawful intent. The defense often shows:
- The accused intended to defend themselves
- The contact was accidental
- The accused was trying to break up a fight
- The accused was restraining someone for safety
Challenging “Dangerous Weapon” or “Dangerous Means” Allegations
Prosecutors frequently overcharge. They may label common objects as dangerous weapons. The defense must examine:
- The size and weight of the object
- How it was used
- Intent behind its use
- Likelihood it could produce serious injury
Many cases shrink from aggravated assault to simple assault on closer examination.
Boards, NJP, and Administrative Cases
When Article 128 does not go to court martial, it often becomes the basis for:
Gonzalez & Waddington prepare these cases with the same seriousness as criminal trials because careers, retirement, and reputation are at stake.
Pro Tips for Service Members Facing Article 128 Allegations
These practical tips help protect your rights and strengthen your defense from day one.
- Do not make statements to police or military investigators without counsel. Emotional explanations usually make things worse.
- Preserve all text messages, photos, and videos related to the event. These often show mutual combat or contradictory stories.
- Ask your lawyer to obtain Florida bodycam footage immediately. It may contradict police reports.
- Do not contact the alleged victim. Even “clearing things up” can lead to obstruction or Article 92 charges.
- If injured, document your own injuries. Photos and medical visits show self-defense or mutual combat.
- Identify sober witnesses early. Their memories fade quickly.
- Write down your version of events before details fade. Include lighting, distance, and emotional state.
- Avoid talking about the case in the barracks. Rumors easily distort facts and become government evidence.
- Do not delete anything. Deleting messages looks like guilt and triggers Article 131b concerns.
- Stay professional with your chain of command. Your demeanor influences decisions about NJP vs. court martial.
- Prepare for a long investigation. Assault cases often take months before the command decides what to do.
- Do not downplay the seriousness of assault allegations. Even “minor” incidents can end your career.
- Work closely with your counsel on self-defense theory. This requires consistency and clarity from the start.
- If you were intoxicated, be honest with your lawyer. The defense must understand your condition at the time.
- Remember that Article 128 cases often turn on small details—angles, lighting, timing, and body position.
Call to Action for Article 128 Allegations
If you are under investigation or facing Article 128 charges, the decisions you make now will shape your future. Assault allegations are messy, emotional, and often based on incomplete or inaccurate information. Commands tend to overcharge, prosecutors assume guilt, and investigators fail to gather full context unless pushed.
Gonzalez & Waddington have defended service members in some of the most challenging assault and aggravated assault cases worldwide. We understand the interplay between self-defense, alcohol, mutual combat, and unreliable witnesses. Whether your case arises from a Florida nightclub, a barracks fight, a domestic dispute, or a tense argument that got out of control, we can help you get ahead of the narrative and protect your freedom and career.
To speak with us or review your case strategy, visit our Florida military defense hub at
https://ucmjdefense.com/florida-military-defense-lawyers/.
For the full index of punitive articles, return to the main page at
UCMJ Articles 77–134 Guide.
