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Article 128b of the Uniform Code of Military Justice criminalizes acts of domestic violence committed by service members. The article consolidates several forms of abusive conduct into a single offense category when the victim has a qualifying domestic relationship with the accused. It applies alongside other UCMJ assault and violence provisions but establishes additional elements tied to the relationship between the parties.
Article 128b covers a range of acts that cause or threaten harm against a spouse, intimate partner, or other protected persons. The statute includes physical violence, nonconsensual sexual acts or contact, violations of protective orders, and certain acts of property destruction when used as a means of intimidation or control. It also encompasses offenses committed through strangulation, suffocation, or attempts to inflict bodily injury.
Any person subject to the UCMJ may be charged under Article 128b. The protected victim must fall within the statutory categories, which generally include spouses, former spouses, intimate partners, co-parents, and certain household members. The relationship element is an essential component of the offense.
The required mental state depends on the particular form of misconduct. Most subsections require intentional or knowing conduct, such as deliberate infliction of harm or purposeful violation of an order. Certain reckless acts causing injury may also satisfy the statute where specified.
Attempt and conspiracy liability under Articles 80 and 81 may apply when a service member purposefully plans or tries to commit domestic violence but does not complete the offense. Accomplice liability under Article 77 may apply if a person aids, abets, or encourages the commission of domestic violence. These ancillary provisions function in the same manner as with other UCMJ offenses.
To secure a conviction under Article 128b, the government must prove every element of the offense beyond a reasonable doubt. These elements define the prohibited conduct, the required mental state, and the qualifying relationship that transforms an underlying assault or violent offense into domestic violence under the UCMJ.
The mens rea element depends on the nature of the underlying violent act. Intent, knowledge, or recklessness may satisfy the requirement, but negligence alone is insufficient. The government must show that the accused’s mental state met the threshold for the specific assaultive or violent conduct charged.
The actus reus consists of committing an assault or other enumerated violent act—such as bodily harm, threats of harm, strangulation, or property damage used as a means of coercion—against a qualifying victim. Physical contact is not required if the underlying offense includes threats or other coercive acts.
Statutory definitions in Article 128b include “domestic violence,” which incorporates both physical and nonphysical misconduct, and “intimate partner” or “household member,” which specify the protected victim relationships necessary for liability.
Punishment under the Uniform Code of Military Justice (UCMJ) depends on the date of the alleged offense. Offenses committed before December 27, 2023 are sentenced under the traditional maximum_punishment model, while offenses on or after that date use the structured sentencing_category system implemented by the FY22 NDAA.
For violations of Article 128b (Domestic Violence) occurring before December 27, 2023, the maximum authorized punishment is established in the Manual for Courts_Martial (2019–2023 editions). The maximum punishment includes:
For conduct occurring on or after December 27, 2023, Article 128b is governed by the new sentencing_category system. Under the 2024 Manual for Courts_Martial, Article 128b is assigned to:
Under the sentencing_category system, offenses are grouped into categories that specify the permissible confinement range rather than relying on individualized maximums for each punitive article. This framework standardizes sentencing limits across offenses with similar severity. In contrast, the pre_December 27, 2023 model assigned a unique maximum punishment to each punitive article, and the sentencing authority could adjudge any lawful sentence up to that maximum. The new system narrows judicial discretion by providing defined confinement ranges tied to the assigned category while maintaining the authority to impose punitive discharges, reductions, and forfeitures where permitted.
Charging decisions under Article 128b are shaped by the specific fact pattern, the initial source of the allegation, and the level of command involvement. Prosecutors frequently rely on the totality of the relationship history, available witness statements, and physical evidence to determine whether the conduct fits the statutory elements of domestic violence as opposed to general assault or other misconduct.
Domestic violence allegations typically arise from incidents occurring within on-base housing, off_base residences, or during arguments observed by neighbors, friends, or children. Common scenarios include:
Prosecutors commonly pair Article 128b with other articles when the underlying conduct overlaps with additional offenses. Frequently co_charged articles include:
Most cases begin with a report to military law enforcement, civilian police, or a mandated reporter. CID, NCIS, OSI, or CGIS typically take the lead when the allegation falls within their service jurisdiction. Investigations often include recorded interviews, digital evidence collection, medical examinations, and collateral interviews with neighbors, unit members, or prior partners. Commands may initiate parallel command_directed inquiries to address immediate safety concerns or administrative considerations.
Charging patterns commonly involve layering Article 128b with related offenses to address each discrete act within a single incident. Prosecutors may use alternative theories, such as charging both domestic violence and simple assault, to preserve options depending on evidentiary strength. Overlapping statutes are used when conduct spans physical, digital, and regulatory violations, reflecting the multifaceted nature of domestic incidents in military settings.
Prosecutions under Article 128b of the UCMJ often hinge on whether the government can prove each statutory element, how factfinders assess the credibility of witnesses, and the court’s rulings on contested evidentiary issues. Disputes may also arise from the interpretation of statutory language or cross-referenced provisions that define domestic violence–related conduct.
Litigation commonly focuses on whether the evidence satisfies all elements of Article 128b, including proof of an act of violence, the nature of the relationship, and any aggravating factors. Contested issues may include:
Disputes over the mental state required for liability are frequent. Some variants of domestic violence offenses require proof of specific intent, while others allow conviction based on knowledge, recklessness, or negligence. Issues may arise regarding:
Cases under Article 128b often rely heavily on testimonial evidence, and credibility disputes can be central. Challenges may involve inconsistencies in statements, recantations, memory limitations, or differing accounts from bystanders or law enforcement. Factfinders may also consider the context of the relationship and the presence or absence of corroborating evidence such as injuries, messages, or recordings.
Evidentiary rulings can significantly influence the scope of permissible proof. Common issues include:
Courts occasionally confront ambiguities in the statutory text or in cross-referenced definitions, such as what constitutes a qualifying relationship or whether certain conduct fits within a listed category of domestic violence. Interpretation questions may also arise when harmonizing Article 128b with other UCMJ provisions, regulatory definitions, or federal domestic violence statutes.
Overview of assault and aggravated assault under Article 128
Maiming offenses often associated with serious domestic violence incidents
Strangulation as a related domestic violence offense under Article 128b
Communicating threats frequently charged alongside domestic violence allegations
Stalking behaviors that may accompany domestic violence patterns
Collateral consequences are administrative, professional, or legal effects that may arise independently of any punishment ordered by a court-martial. These consequences are imposed by military regulations, federal or state law, or other authorities and may affect a service member long after the court-martial concludes.
A conviction under Article 128b may prompt administrative review of a service member’s suitability for continued service. Possible outcomes include:
Domestic violence convictions can raise concerns about judgment, reliability, and personal conduct, factors relevant to security clearance determinations. This may result in suspension or revocation of clearance eligibility, loss of access to classified information, or reassignment to non_sensitive duties. Post-service employment in fields requiring a security clearance or background investigation may also be affected.
Article 128b offenses do not automatically trigger sex offender registration unless the underlying conduct involves a registrable sexual offense. Any registration or reporting requirement is determined by federal and state law, which may vary by jurisdiction.
Conduct supporting an Article 128b conviction may also violate federal or state domestic violence laws. This can lead to separate civilian criminal investigation or prosecution, as well as potential civil actions such as protection orders or tort claims.
For non_citizen service members, a domestic violence conviction may affect immigration status, admissibility, or eligibility for naturalization. Consequences depend on federal immigration statutes and the specific facts of the offense.
During an investigation under UCMJ Article 128b, decisions made at the earliest stages often influence the course of the case long before charges are preferred. Actions taken during this period can shape how facts are recorded, how allegations are framed, and which avenues remain available later in the process.
Military investigators typically gather statements, physical documents, and digital data immediately after an allegation is reported. Early legal involvement can help ensure that evidence is preserved accurately, that potentially incomplete or ambiguous information is clarified, and that requests for data are handled within proper legal boundaries. Guidance from an attorney, including a civilian military defense lawyer, can help a service member navigate these complex evidentiary procedures.
Interviews conducted by command representatives or law enforcement often occur before a service member fully understands the allegations or the scope of the inquiry. Without preparation, individuals may provide statements that lack context or contain inaccuracies. These interviews are documented and may influence later decisions by commanders, investigators, or legal authorities.
Command-directed inquiries, such as AR 15-6 or equivalent processes, can proceed even when criminal charges have not been initiated. Early participation in these inquiries can affect how findings are recorded, which administrative options are considered, and how the command views the service member’s actions throughout the process.
Choices made early—such as consenting to searches, providing written statements, or responding to administrative requests—can have continuing effects throughout any subsequent court-martial, separation action, or administrative review. These decisions often become part of the official record and may influence legal assessments at later stages.
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 facing complex military criminal allegations, providing experienced guidance throughout investigations, administrative actions, and courts-martial. Their work includes handling sensitive and high-stakes cases in which service members require knowledgeable representation that understands both military procedure and the unique demands of the armed forces.
If you are facing allegations under UCMJ Article 128b or require informed legal guidance, you may contact Gonzalez & Waddington to discuss your situation and explore your available options. The firm provides confidential consultations to help service members understand the processes ahead and make informed decisions about their defense.
Q: What does UCMJ Article 128b: Domestic Violence cover?
A: Article 128b addresses acts of domestic violence committed by a service member against a spouse, intimate partner, or other protected individual. It includes offenses such as assault, battery, strangulation, or violations of protective orders. The article also covers conduct involving threats or attempts that create a reasonable fear of harm. Command authorities evaluate the circumstances, relationship, and alleged actions to determine whether the conduct fits within the scope of this statute.
Q: What is the maximum punishment for UCMJ Article 128b: Domestic Violence?
A: Maximum punishment varies based on the specific conduct proved at trial. Possible outcomes may include confinement, reduction in rank, forfeiture of pay, and a punitive discharge. The severity depends on factors such as the nature of the act, injuries involved, and whether aggravating circumstances were present. Sentencing follows the guidelines authorized under the UCMJ, and the court-martial panel or military judge evaluates all admissible evidence before determining the appropriate penalty.
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 if there is no court-martial conviction. Such actions rely on a lower evidentiary standard, typically a preponderance of the evidence. The service member may be entitled to an administrative board depending on rank and years of service. Potential outcomes include retention, a general discharge, or an other than honorable discharge, depending on the board’s findings and recommendations.
Q: Do I need a civilian military defense lawyer for an investigation under this article?
A: Service members are entitled to consult with appointed military defense counsel at no cost, but some choose to retain a civilian attorney for additional support. A civilian lawyer can offer independent legal advice and may have specialized experience in UCMJ domestic violence cases. Representation decisions depend on personal circumstances, case complexity, and preference for supplemental legal guidance during investigations or potential disciplinary proceedings.
Q: Can a domestic violence allegation be handled without a court-martial, such as through administrative action or nonjudicial punishment?
A: Yes. Depending on the facts and command discretion, allegations under Article 128b may be addressed through nonjudicial punishment, counseling, or administrative corrective measures rather than a court-martial. These actions use different evidentiary standards and procedures. Commanders assess the seriousness of the allegation, available evidence, and the service member’s history to determine the most appropriate forum for resolving the matter.
Q: Which agencies typically investigate domestic violence allegations in the military?
A: Investigations may be conducted by military law enforcement agencies such as CID, NCIS, or OSI, depending on the service branch. These agencies gather statements, physical evidence, digital records, and forensic materials relevant to the allegation. Command authorities may also coordinate with local civilian law enforcement when incidents occur off_installation. The investigative findings help determine whether administrative action, nonjudicial punishment, or court-martial proceedings are appropriate.
Q: What types of evidence are commonly reviewed in Article 128b cases?
A: Investigators typically examine witness statements, medical reports, electronic communications, photographs, and any available physical evidence. They may also review prior incidents, protective orders, or related administrative findings when relevant and admissible. Evidence is evaluated to determine credibility, context, and consistency. The strength and reliability of the materials gathered influence how commanders and legal authorities decide on disciplinary or judicial actions.
If you want to review the Articles of the UCMJ and learn more about military law, you can start here: UCMJ Articles and Military Justice Resources. You may also find helpful official information from the Air Force Judge Advocate General’s Corps at afjag.af.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.
