§ Article 128b : Domestic Violence

Article 128b of the UCMJ (10 U.S.C. § 928b) punishes committing a violent offense against a spouse, intimate partner, dating partner, or immediate family member; committing another UCMJ offense against any person or property, including an animal, with intent to threaten or intimidate one of those protected persons; violating a protection order with intent to threaten, intimidate, or commit a violent offense against one of those persons; and assaulting one of those persons by strangulation or suffocation.

Who It Applies To

Under the statute, any person who:

1. commits a violent offense against a spouse, an intimate partner, a dating partner, or an immediate family member of that person;
2. with intent to threaten or intimidate one of those persons, commits an offense under the UCMJ against any person, or against any property, including an animal;
3. with intent to threaten or intimidate one of those persons, violates a protection order;
4. with intent to commit a violent offense against one of those persons, violates a protection order; or
5. assaults one of those persons by strangling or suffocating.

What It Covers

The Manual, as amended by Executive Order 14130 (2024), lists six offenses:

1. Violent offense against a spouse, intimate partner, dating partner, or immediate family member — the accused committed a violent offense against such a person. Where alleged: the immediate family member was a child under 16.
2. UCMJ violation against any person, with intent to threaten or intimidate — the accused committed an act in violation of the UCMJ against any person, with intent to threaten or intimidate a spouse, intimate partner, dating partner, or immediate family member of the accused.
3. UCMJ violation against any property, including an animal, with intent to threaten or intimidate — the same, where the act was against property.
4. Violating a protection order with intent to threaten or intimidate — a lawful protection order was in place; the accused committed an act in violation of it; and the accused did so with intent to threaten or intimidate a spouse, intimate partner, dating partner, or immediate family member.
5. Violating a protection order with intent to commit a violent offense — the same, where the accused intended to commit a violent offense against such a person.
6. Assault by strangulation or suffocation — the accused assaulted a spouse, intimate partner, dating partner, or immediate family member by strangulation or suffocation, with unlawful force or violence. Where alleged: the person was a child under 16.

Congress added dating partners to Article 128b in the National Defense Authorization Act for Fiscal Year 2024 (Pub. L. 118-31). Executive Order 14130 (2024) then amended Part IV of the Manual to add dating partners to Article 128b’s elements, definitions, maximum-punishment provisions, and sample specifications.

Key definitions

• Violent offense — a violation of Article 118, 119(a), 119a, 120, 120b, 122, 125, 126, 128, 128a, or 130, or any other offense with an element involving the use, attempted use, or threatened use of physical force against the person or property of another.
• Spouse — a husband or wife by lawful marriage.
• Intimate partner — a former spouse; a person with whom one shares a child; a person with whom one cohabits or has cohabited as a spouse; or a person with whom one has been in a social relationship of a romantic or intimate nature, as determined by its length, type, and frequency of interaction.
• Dating partner — a person who is or has been in a social relationship of a romantic or intimate nature with the specific person, based on the length and type of the relationship, the frequency of interaction, and the extent of physical intimacy or sexual contact (Article 130). Under the Manual, the relative weight given to each of these criteria may vary with the facts and circumstances.
• Immediate family — a spouse, parent, brother or sister, child, or other person to whom one stands in loco parentis; or any other person living in one’s household and related by blood or marriage.
• Protection order — a military protective order enforceable under Article 92, or a protection order as defined in 18 U.S.C. § 2266 that, if issued by a State, tribal, or territorial court, meets the standards of 18 U.S.C. § 2265.
• Strangulation and suffocation have the meanings used for Article 128.

Maximum Punishment

Maximum authorized punishment. Each offense carries a dishonorable discharge and forfeiture of all pay and allowances, with confinement as follows:

• Violent offense against a protected person, or a UCMJ violation against any person or property with intent to threaten or intimidate: the maximum confinement authorized for the underlying offense plus 3 years — except where the underlying offense’s maximum includes death, life without eligibility for parole, or life.
• Violating a protection order with intent to threaten or intimidate: 3 years.
• Violating a protection order with intent to commit a violent offense: 5 years.
• Assault by strangulation or suffocation: 11 years when committed upon a child under 16; 8 years in other cases.

Under the Manual, mandatory minimum punishment provisions do not apply to a conviction under this article.

Sentencing parameters.

• Violent offense, and UCMJ violation against a person or property with intent to threaten or intimidate: dependent on the underlying offense.
• Violating a protection order (either form): Category 2 (1–36 months).
• Assault by strangulation or suffocation upon a child under 16: Category 3 (30–120 months). Other cases: Category 2 (1–36 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.

Related and Distinguished

Article 128b adds a relationship element to conduct that may also be charged under other articles, such as assault under Article 128, communicating threats under Article 115, or stalking under Article 130, which supplies its relationship definitions. Violating a military protective order without the intent required here may be addressed by Article 92, and endangering a child by a person with a duty of care by Article 119b.

What the Provision Does

Article 128b creates relationship-specific offenses covering specified violent conduct, qualifying UCMJ violations, protection-order violations, and assault by strangulation or suffocation involving the relationships identified in the provision.

History

Article 128b was added to the UCMJ by the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232, § 532), enacted August 13, 2018, and took effect on January 1, 2019. A section heading was added in 2019 (Pub. L. 116-92), and in December 2023 Pub. L. 118-31 added dating partners and cross-referenced the relationship definitions in Article 130. Executive Order 14130 (December 20, 2024) amended the Manual’s Article 128b paragraph to add dating partners to its statutory text, elements, definitions, maximum-punishment provisions, and sample specifications.

Sources

• 10 U.S.C. § 928b (Article 128b, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 78a
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Executive Order 14130, 2024 Amendments to the Manual for Courts-Martial, United States, 89 Fed. Reg. 105343 (Dec. 27, 2024), Annex, Section 3 (amendments to Part IV, paragraph 78a)
• 18 U.S.C. §§ 2265–2266 (protection orders)