Article 128 : Assault

Offense family
Violence and Sexual Offenses
Maximum confinement
3 months to 20 years depending on form, weapon, harm, and victim
Sentencing parameter
Category 1, 2, or 3

Published

Article 128 of the UCMJ (10 U.S.C. § 928) punishes simple assault, aggravated assault, and assault committed with intent to commit certain serious offenses. Punishment scales with the weapon involved, the resulting harm, the status of the victim, and the underlying intent.

Who It Applies To

Assault: any person subject to the UCMJ who, unlawfully and with force or violence, attempts to do, offers to do, or does bodily harm to another person.

Aggravated assault: any person subject to the UCMJ who, with intent to do bodily harm, offers to do bodily harm with a dangerous weapon; who, in committing an assault, inflicts substantial or grievous bodily harm on another person; or who commits an assault by strangulation or suffocation.

Assault with intent to commit specified offenses: any person subject to the UCMJ who commits assault with intent to commit murder, voluntary manslaughter, rape, sexual assault, rape of a child, sexual assault of a child, robbery, arson, burglary, or kidnapping.

What It Covers

Simple assault

  1. The accused attempted to do, or offered to do, bodily harm to a certain person.
  2. The attempt or offer was done unlawfully.
  3. The attempt or offer was done with force or violence.

Assault consummated by a battery

  1. The accused did bodily harm to a certain person.
  2. The bodily harm was done unlawfully.
  3. The bodily harm was done with force or violence.
  4. Where alleged: the person was a child under 16.

Assaults with increased punishment based on the victim’s status. The elements of simple assault or battery, plus: the person was a commissioned, warrant, noncommissioned, or petty officer — or a sentinel or lookout in the execution of duty, or a person then performing security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties — and the accused then knew it.

Aggravated assault with a dangerous weapon

  1. The accused offered to do bodily harm to a certain person.
  2. The offer was made with intent to do bodily harm.
  3. The accused did so with a dangerous weapon.
  4. Where alleged: the weapon was a loaded firearm, or the person was a child under 16.

Aggravated assault inflicting substantial or grievous bodily harm

  1. The accused assaulted a certain person.
  2. Substantial (or grievous) bodily harm was thereby inflicted on that person.
  3. Where alleged: the injury was inflicted with a loaded firearm, or the person was a child under 16.

Aggravated assault by strangulation or suffocation

  1. The accused assaulted a certain person.
  2. The accused did so by strangulation or suffocation.
  3. The strangulation or suffocation was done with unlawful force or violence.
  4. Where alleged: the person was a child under 16.

Assault with intent to commit specified offenses

  1. The accused assaulted a certain person.
  2. At the time, the accused intended to kill (as required for murder or voluntary manslaughter), or to commit rape, rape of a child, sexual assault, sexual assault of a child, robbery, arson, burglary, or kidnapping.

Key definitions

  • Bodily harm — an offensive touching of another, however slight.
  • Substantial bodily harm — an injury involving a temporary but substantial disfigurement, or a temporary but substantial loss or impairment of the function of a bodily member, organ, or mental faculty.
  • Grievous bodily harm — an injury involving 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.
  • Dangerous weapon — a weapon used in a manner capable of inflicting death or grievous bodily harm. It depends on the manner of use, not the object; under the Manual, a bottle, rock, piece of pipe, boiling water, or, in appropriate circumstances, fists, teeth, or feet can qualify.
  • Strangulation — intentionally, knowingly, or recklessly impeding normal breathing or blood circulation by applying pressure to the throat or neck. Suffocation — intentionally, knowingly, or recklessly impeding normal breathing by covering the mouth, nose, or both. Neither requires visible injury or an intent to kill or protractedly injure.

Key rules

  • An attempt-type assault requires a specific intent to inflict bodily harm and an overt act beyond mere preparation; the victim need not be aware of it. An offer-type assault is an unlawful demonstration of violence, by an intentional or culpably negligent act, that creates a reasonable apprehension of immediate bodily harm; specific intent to harm is not required.
  • Threatening words alone are not an assault, but words accompanied by a menacing act or gesture may be. If the circumstances known to the person menaced clearly negate an intent to harm, there is no assault. An offer to inflict injury unless the person complies with a demand the assailant has no right to make is an assault.
  • It is not a defense that the attempt was bound to fail for a reason unknown to the assailant. There must, however, be an apparent present ability to inflict the injury.
  • A battery may be committed directly or indirectly. There is no battery if bodily harm is inflicted unintentionally and without culpable negligence, or by touching someone to attract attention or prevent injury. Using more force than is excused is a battery.
  • For the officer and law-enforcement categories, knowledge of the victim’s status is an element; the victim need not be superior in rank, in the same armed force, or in the execution of office. For the child-under-16 categories, knowledge of the child’s age is not an element.
  • Assault with a dangerous weapon requires a specific intent to do bodily harm; culpable negligence is not enough, and no injury need result. Assault inflicting substantial or grievous bodily harm is a general-intent offense focused on the degree of harm that results.
  • An assault with intent to commit an offense is not necessarily an attempt to commit that offense. For assault with intent to murder, a specific intent to kill is required, no injury is necessary, and the intent may be directed at someone other than the person assaulted.

Maximum Punishment

Maximum authorized punishment.

Simple assault

  • Generally: confinement for 3 months and forfeiture of two-thirds pay per month for 3 months, with no punitive discharge.
  • With an unloaded firearm or other dangerous weapon: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
  • With a loaded firearm: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 4 years.

Battery and status-based assaults

  • Assault consummated by a battery: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
  • Assault upon a commissioned officer of the U.S. armed forces or of a friendly foreign power, not in the execution of office: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
  • Assault upon a warrant officer, not in the execution of office: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.
  • Assault upon a noncommissioned or petty officer, not in the execution of office: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
  • Assault upon a sentinel or lookout in the execution of duty, or a person performing law enforcement duties in the execution of office: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
  • Assault consummated by a battery upon a child under 16: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

Aggravated assault (each with dishonorable discharge and forfeiture of all pay and allowances)

  • With a dangerous weapon: 8 years with a loaded firearm; 5 years upon a child under 16; 3 years in other cases.
  • Inflicting substantial bodily harm: 8 years with a loaded firearm; 6 years upon a child under 16; 3 years in other cases.
  • Inflicting grievous bodily harm: 10 years with a loaded firearm; 8 years upon a child under 16; 5 years in other cases.
  • By strangulation or suffocation: 8 years upon a child under 16; 5 years in other cases.

Assault with intent to commit specified offenses (each with dishonorable discharge and forfeiture of all pay and allowances)

  • With intent to commit murder, rape, or rape of a child: 20 years.
  • With intent to commit voluntary manslaughter, robbery, arson, burglary, kidnapping, sexual assault, or sexual assault of a child: 10 years.

Sentencing parameters.

  • Simple assault generally: Category 1 (0–12 months), with a recommended maximum of 3 months. Simple assault with an unloaded firearm: Category 2 (1–36 months). Appendix 12C does not list a separate category for simple assault with a loaded firearm.
  • Assault consummated by a battery: Category 1, with a recommended maximum of 6 months.
  • Assault upon a commissioned officer, or upon a sentinel, lookout, or law enforcement person: Category 2 (1–36 months).
  • Assault upon a warrant officer: Category 2, with a recommended maximum of 18 months.
  • Assault upon a noncommissioned or petty officer: Category 1, with a recommended maximum of 6 months.
  • Battery upon a child under 16: Category 2, with a recommended maximum of 24 months.
  • Aggravated assault with a loaded firearm, or upon a child under 16 (dangerous weapon, substantial or grievous bodily harm, or strangulation or suffocation): Category 3 (30–120 months). Where the authorized maximum is below 120 months (96 months for most of these forms; 60 months for a dangerous weapon upon a child; 72 months for substantial bodily harm upon a child), that shorter period is the recommended maximum.
  • Aggravated assault, other cases: Category 2 (1–36 months).
  • Assault with intent to commit specified offenses: Category 3 (30–120 months).

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Assault does not require the specific intent to injure that maiming under Article 128a requires, or a resulting death as in Articles 118 and 119. Assault on a spouse, intimate partner, dating partner, or immediate family member may also be charged under Article 128b, and striking or offering violence to a superior commissioned officer or a warrant, noncommissioned, or petty officer in the execution of office under Article 89 or Article 91. A threat made in words alone may be addressed by Article 115.

What the Provision Does

Article 128 covers physical violence against another person, from an offensive touch to armed violence or serious injury, and grades the maximum punishment by the weapon, the harm, the victim, and the accused’s intent.

History

Article 128 appeared in the original 1950 UCMJ and was codified at 10 U.S.C. § 928 in 1956. The Military Justice Act of 2016 (Pub. L. 114-328, § 5441) rewrote it, effective January 1, 2019, and brought into it assault with intent to commit specified offenses, which had previously been charged as an enumerated offense under Article 134 (paragraph 64 of the 2016 edition of the Manual). After a technical amendment in 2017, Pub. L. 115-232 (§ 531, enacted August 13, 2018) added aggravated assault by strangulation or suffocation. The maximum punishments for simple assault with a firearm were revised by Executive Order 14103 in 2023.

Sources

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