Table Content
Article 128 of the Uniform Code of Military Justice defines and criminalizes assaultive conduct by service members. The article covers both simple assault and aggravated assault, with distinctions based on the nature of the act, the means used, and the degree of injury or threatened injury. The offense applies to all persons subject to the UCMJ under Article 2.
Simple assault includes an unlawful attempt to inflict bodily harm or an offer-type assault that causes a reasonable apprehension of immediate harm. Physical contact is not required for an attempt or offer-type assault, but it is required for assault consummated by a battery. Aggravated assault involves the use of a dangerous weapon, force likely to produce death or grievous bodily harm, or the infliction of actual grievous bodily harm.
Examples include:
Simple assault requires an intentional or culpably negligent act. Assault consummated by battery generally requires intentional and unlawful touching, though culpable negligence may satisfy the mens rea for some variants. Aggravated assault typically requires intentional or knowing conduct, particularly when a dangerous weapon or likely serious harm is involved.
Attempt liability applies because assault includes attempt-type conduct, but a separate attempt charge may be used if the circumstances warrant. Conspiracy under Article 81 may apply when two or more persons agree to commit an assault and take overt action to advance the plan. Accomplice liability under Article 77 applies to those who aid, abet, or encourage another to commit an assault.
Article 128 permits prosecution of a wide range of harmful or threatening behavior within the armed forces, ensuring discipline and protection of personnel.
Watch the military defense lawyers at Gonzalez & Waddington break down how they defend service members worldwide against UCMJ allegations, CID/NCIS/OSI investigations, court-martials, Article 120 cases, administrative separations, and GOMORs. If you’re under investigation or facing charges, this video explains what your rights are and how experienced civilian military counsel can make the difference.
The government must prove each element of Article 128 beyond a reasonable doubt. These elements define the prohibited conduct and mental state necessary to establish liability for assault or aggravated assault under the Uniform Code of Military Justice.
The mens rea for simple assault varies with the nature of the alleged act. An attempt or offer-type assault requires an intentional act demonstrating a present ability and design to inflict bodily harm. Battery-type assault may be committed intentionally or through culpable negligence, which is a negligent act demonstrating a disregard for foreseeable consequences to others.
The actus reus consists of an overt act amounting to an unlawful attempt, offer, or actual infliction of bodily harm. Bodily harm is any offensive touching, however slight, and need not cause injury.
Aggravated assault requires either the use of a dangerous weapon or means likely to produce death or grievous bodily harm, or the intentional infliction of grievous bodily harm. A dangerous weapon includes any object capable of causing death or serious injury when used in the manner employed by the accused.
Punishment under Article 128, UCMJ depends on the date of the alleged offense. Offenses committed before December 27, 2023 fall under the traditional maximum_punishment model. Offenses committed on or after December 27, 2023 are sentenced under the revised sentencing_category framework implemented by the FY22 National Defense Authorization Act.
Article 128 includes both simple assault and aggravated assault. Maximum punishments vary by the specific theory charged and proved.
Under the revised system, offenses are assigned to sentencing categories that define the authorized confinement range and whether a punitive discharge may be adjudged.
Under the sentencing_category model, each offense is associated with a defined confinement range rather than a single maximum. This system standardizes sentencing across cases by grouping offenses of similar seriousness, while the earlier model relied entirely on offense_specific maximum punishments listed in the Manual for Courts_Martial.
Charging decisions under Article 128 typically follow clear factual patterns identified during initial reports, command observations, or law-enforcement responses. While the statutory definitions guide the legal elements, the actual decision to bring an assault charge is heavily influenced by the surrounding circumstances, available evidence, witness statements, and the degree of command concern regarding unit cohesion, safety, and good order and discipline.
Assault and aggravated assault are most frequently charged when a physical altercation occurs within a unit or during off-duty social interactions. Many cases originate from alcohol-fueled conflicts in barracks, housing areas, or local establishments. Domestic disturbances involving service members are another recurring source of allegations, often reported through military police or civilian law enforcement. Training incidents also generate charges when contact exceeds authorized bounds, such as improper use of training weapons or unacceptable corrective physical behavior. Additionally, allegations involving threats, pushing, or brandishing objects as weapons surface regularly, even when no injury occurs, because perceived intent and fear are often central to reporting.
Most cases begin with an immediate report to military police, civilian authorities, or the chain of command. Commanders may initiate command-directed inquiries to clarify initial facts, particularly in lower-level or ambiguous situations. More serious allegations or those involving significant injury, weapons, or domestic circumstances are typically referred to investigative agencies such as CID, NCIS, OSI, or CGIS. These agencies conduct interviews, collect physical evidence, and review medical documentation. Parallel administrative fact-finding—such as safety reports or command climate assessments—sometimes informs how the case proceeds but does not replace the formal criminal investigation.
Prosecutors commonly utilize alternative theories within the same specification, such as charging both simple and aggravated assault based on varying interpretations of intent, means, or injury. Charge-stacking occurs when separate acts within a single event are charged individually, especially in multi-person altercations. Overlapping statutes, including domestic violence and threat-related articles, are used to address conduct that spans different legal definitions while ensuring coverage for each actionable aspect of the behavior. These patterns reflect a preference for presenting factually grounded options rather than relying on a single narrow theory of the case.
Prosecutions under UCMJ Article 128 often hinge on how well the evidence satisfies the specific statutory elements, the reliability of witness accounts, the admissibility of key proof, and the interpretation of the assault and aggravated assault provisions. Litigation commonly centers on whether the government’s evidence meets each required component and whether contested factual or legal issues create reasonable doubt.
Element-based disputes arise when the defense contests whether the government has proven conduct constituting an assault, the presence of unlawful force or violence, or aggravating factors such as the use of a dangerous weapon or infliction of substantial bodily harm. These challenges typically focus on evidentiary sufficiency rather than alternative narratives. Common issues include:
Because Article 128 offenses can require proof of intent, knowledge, recklessness, or culpable negligence depending on the charged theory, disputes often arise over the state of mind inferred from the defendant’s conduct. Litigants commonly examine contextual factors such as the manner of the act, the foreseeability of harm, and whether the evidence supports a purposeful or knowing application of force. The degree of mens rea required for aggravated assault enhancements is also frequently litigated, particularly when injury severity or weapon use is at issue.
Assault cases frequently rely on testimonial evidence, leading to disputes over witness recollection, consistency, perception, and potential bias. Investigative inconsistencies, the timing of reports, and the role of corroborating or contradictory physical evidence can influence how factfinders assess the credibility of complainants, bystanders, or law enforcement personnel. These issues often shape the factual foundation upon which legal arguments rest.
Common evidentiary disputes include the admissibility of statements made during command questioning, law enforcement interviews, or informal exchanges, particularly when rights advisements or voluntariness are contested. Search and seizure issues may arise when digital records, medical documentation, or physical evidence are obtained under possibly defective warrants or command authorizations. Chain-of-custody challenges and disputes over the reliability of forensic or digital analysis also appear with regularity.
Ambiguities in definitions such as “bodily harm,” “dangerous weapon,” or “means likely to produce death or grievous bodily harm” can prompt interpretive disputes. Courts may need to analyze cross-referenced provisions, assess legislative history, or determine how broadly or narrowly to construe particular terms. These issues often influence charging decisions and the scope of liability under Article 128.
Collateral consequences are administrative, professional, or legal effects that may arise from a conviction independently of any punishment imposed at court-martial. They are typically the result of regulatory, administrative, or statutory frameworks that operate alongside the military justice system and can influence a service member’s career, post-service opportunities, and legal status.
A conviction under UCMJ Article 128 may prompt administrative review of a service member’s suitability for continued service. Possible outcomes include:
A conviction involving assault or aggravated assault may raise concerns relevant to security clearance adjudication, such as judgment, reliability, and adherence to professional standards. These concerns may result in suspension, denial, or revocation of a clearance, which can limit military duties and restrict post-service employment in fields that rely on clearance eligibility or suitability determinations.
Most Article 128 convictions do not trigger sex offender registration. However, if the underlying conduct includes elements that fall under federal or state registration laws, reporting requirements may apply. Registration obligations are governed by civilian jurisdiction statutes, not the UCMJ.
The same conduct that forms the basis of a military conviction may also be subject to civilian criminal investigation or prosecution, particularly if it occurred off-base or involved civilians. Additionally, alleged victims may pursue civil claims for damages, which proceed independently of military processes.
For non-citizens, certain assault-related convictions may affect immigration status, including admissibility and deportability determinations under federal law. Naturalized service members may also encounter questions regarding good moral character requirements in related administrative reviews.
During the investigative phase of an alleged UCMJ Article 128 offense, decisions are made that can influence the direction and outcome of the case well before any charges are preferred. Because investigators and command authorities form early impressions based on initial statements and evidence, timely legal guidance helps ensure that the process unfolds in a clear and accurate manner.
Military investigators typically gather physical evidence, digital records, and witness statements soon after an allegation arises. Early legal involvement can help ensure that a service member’s own statements are properly documented, that potentially exculpatory materials are preserved, and that the interpretation of digital or contextual evidence is evaluated carefully rather than solely through the lens of the initial report.
Command or law_enforcement interviews often occur before a service member fully understands the allegations or the scope of the investigation. Without guidance, a member may provide incomplete or unclear statements, waive certain rights without realizing it, or unintentionally introduce inconsistencies that complicate later proceedings.
Administrative inquiries and command-directed investigations frequently run parallel to, or independent of, criminal processes. Early participation in these inquiries can influence how findings are framed, how collateral issues are addressed, and how command authorities view the service member’s conduct. Even a single consultation with civilian military defense lawyers can help clarify procedural expectations.
Choices made early—such as consenting to searches, providing written statements, or responding to administrative questionnaires—can carry through to court-martial actions or administrative proceedings. These early steps may affect credibility assessments, evidentiary rulings, or later command dispositions.
Gonzalez & Waddington is a civilian military defense law firm that represents service members worldwide in cases arising under the Uniform Code of Military Justice. The firm focuses on defending clients in courts-martial and related military justice actions, providing guidance through the complex administrative and investigative processes unique to the military system.
If you are facing allegations under UCMJ Article 128 or have been notified of an investigation or administrative action, Gonzalez & Waddington can discuss your situation and help you understand your options. You are invited to contact the firm to schedule a confidential consultation and learn more about the services available.
Q: What does UCMJ Article 128: Assault and Aggravated Assault cover?
A: Article 128 addresses unlawful attempts or offers to cause bodily harm, as well as actual infliction of harm. It includes simple assault, assault consummated by battery, and aggravated assault involving a dangerous weapon or intent to cause serious injury. The article applies to a wide range of conduct, from minor physical contact to more serious acts, and focuses on whether the accused intentionally or recklessly engaged in prohibited behavior.
Q: What is the maximum punishment for UCMJ Article 128: Assault and Aggravated Assault?
A: Maximum punishment depends on the type of assault charged. Simple assault generally carries lower penalties, while aggravated assault involving a weapon or serious bodily harm can result in significantly higher confinement, a punitive discharge, reduction in rank, and forfeiture of pay. The specific limits are determined by the elements of the offense, circumstances of the incident, and applicable sentencing rules at a court-martial.
Q: Can an allegation under this article lead to administrative separation even without a conviction?
A: Yes. Commanders may initiate administrative separation based on substantiated misconduct, even without a court-martial conviction. The process relies on a lower evidentiary standard, and a board may review the underlying facts to determine whether retention is appropriate. The outcome can include separation with various characterization levels, depending on the service record, evidence presented, and nature of the alleged conduct.
Q: Do I need a civilian military defense lawyer for an investigation under this article?
A: Service members are entitled to military defense counsel at no cost, but some choose to hire civilian counsel for additional support. A civilian attorney may provide expanded availability, independent case review, and focused attention on strategic issues. Whether to retain one is a personal decision that depends on case complexity, potential consequences, and individual preference. Both military and civilian counsel can operate together if desired.
Q: Can an Article 128 case be handled without a court-martial?
A: In some circumstances, commanders may address allegations through administrative measures or nonjudicial punishment instead of a court-martial. This decision depends on the severity of the conduct, available evidence, mission requirements, and recommendations from legal advisors. Nonjudicial actions may impose corrective or disciplinary consequences without creating a federal conviction, while administrative actions focus on suitability for continued service.
Q: Who typically investigates alleged violations of Article 128?
A: Investigations may be conducted by military law enforcement, such as CID, NCIS, or OSI, depending on the service branch. For less severe incidents, unit-level inquiries or command-directed investigations may occur. Investigators collect statements, physical evidence, and background information to determine whether an assault occurred and whether aggravating factors apply. The investigation’s scope depends on the seriousness of the allegation and available information.
Q: What types of evidence are commonly used in Article 128 cases?
A: Evidence may include witness statements, medical reports, photographs of injuries, digital communications, and physical items such as alleged weapons. Investigators may also review video footage, if available, and consider statements from both the complainant and the accused. The strength of the evidence can affect how commanders and legal authorities address the case, including decisions about charges or alternative administrative actions.
You can review the individual Articles of the UCMJ and learn more about military law by clicking here: UCMJ Articles and Military Justice Resources. You can also explore official military law guidance from the Army Judge Advocate General’s Corps at jagcnet.army.mil.
A renowned military criminal defense attorney and best-selling author, Michael Waddington defends clients worldwide in serious cases and trains lawyers in advanced cross-examination. He is frequently featured by major media outlets like CNN and 60 Minutes.
Alexandra González-Waddington is a top military and civilian defense attorney who has handled high-profile sexual assault, violent crime, and war-crimes cases globally. Her work is widely recognized by media outlets including 60 Minutes and ABC’s Nightline.
