UCMJ Article 128b: Domestic Violence
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Article 128b turns certain offenses into domestic violence when the victim is the accused’s spouse, intimate partner, dating partner, or immediate family member. For a violent offense or an offense meant to threaten or intimidate such a person, the maximum confinement is the underlying offense’s maximum plus 3 years. Strangling or suffocating a covered person carries up to 8 years, or 11 years if the victim is a child under 16.
Five ways to commit the offense
Under 10 U.S.C. § 928b(a), the offense is committed by a person who, against a spouse, an intimate partner, a dating partner, or an immediate family member:
- commits a violent offense against that person;
- with intent to threaten or intimidate that person, commits a UCMJ offense against any other person, or against any property, “including an animal”;
- with intent to threaten or intimidate that person, violates a protection order;
- with intent to commit a violent offense against that person, violates a protection order; or
- assaults that person by strangling or suffocating.
The article was added by Pub. L. 115-232 (2018), and “dating partner” was inserted by Pub. L. 118-31 (December 22, 2023). Executive Order 14130 (December 20, 2024) conformed the Manual for Courts-Martial’s elements and sample specifications to that text.
The relationships the statute covers
Section 928b(b) borrows its definitions from Article 130, stalking (10 U.S.C. § 930(b)):
- Intimate partner: a former spouse, a person who shares a child in common with the accused, a person who cohabits or has cohabited with the accused as a spouse, or a person who has been in a social relationship of a romantic or intimate nature with the accused, judged by the length and type of the relationship and the frequency of interaction.
- Dating partner: a person who is or has been in a social relationship of a romantic or intimate nature, judged by the length and type of relationship, the frequency of interaction, and the extent of physical intimacy or sexual contact. Under the Manual’s amended ¶ 78a.c(5), the relative weight of those factors “may vary depending on the facts and circumstances presented.”
- Immediate family: a spouse, parent, brother or sister, child, or other person to whom the accused stands in loco parentis, or any other person living in the household and related by blood or marriage.
A spouse is a husband or wife by lawful marriage (Manual for Courts-Martial (2024 ed.), Part IV, ¶ 78a.c(2)).
What counts as a “violent offense” and a “protection order”
The Manual defines both terms in ¶ 78a.c. A violent offense is a violation of Article 118 (murder), 119(a) (voluntary manslaughter), 119a, 120, 120b, 122 (robbery), 125 (kidnapping), 126 (arson), 128 (assault), 128a (maiming), or 130 (stalking), or any other offense “that has an element that includes the use, attempted use, or threatened use of physical force against the person or property of another.”
A protection order is either 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. A commander’s military protective order is therefore enough to support the protection-order forms of the offense.
Strangulation and suffocation carry the Article 128 definitions: impeding normal breathing or blood circulation by pressure on the throat or neck, or impeding breathing by covering the mouth or nose, done intentionally, knowingly, or recklessly, whether or not there is visible injury or any intent to kill.
The underlying offense plus 3 years
Every form carries a dishonorable discharge and forfeiture of all pay and allowances. Confinement, under ¶ 78a.d as amended by Executive Order 14130:
| Form | Maximum confinement |
|---|---|
| Violent offense against a covered person | Underlying offense's maximum plus 3 years |
| Offense against any person with intent to threaten or intimidate a covered person | Underlying offense's maximum plus 3 years |
| Offense against property, including an animal, with intent to threaten or intimidate a covered person | Underlying offense's maximum plus 3 years |
| 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 |
| Strangulation or suffocation of a covered person | 8 years; 11 years if the victim is a child under 16 |
The plus-3-years rule does not apply where the underlying offense’s maximum already includes death, life without eligibility for parole, or life. For example, a battery on a spouse that would carry 6 months under Article 128 can carry 3 years and 6 months under Article 128b, together with a dishonorable discharge that Article 128 alone would not authorize. The Manual also states that mandatory minimum punishment provisions do not apply to a conviction under this paragraph (¶ 78a.c(8)).
The same strangulation charged as an ordinary assault under Article 128 carries 5 years, or 8 years for a child under 16; the relationship adds 3 years.
Domestic violence as a covered offense
Domestic violence is on the covered-offense list in 10 U.S.C. § 801(17)(A). In a case where the offense occurred after December 27, 2023, a special trial counsel holds exclusive authority over whether the report is covered and over referral, dismissal, and any plea agreement (10 U.S.C. § 824a(c)).
Sources
- 10 U.S.C. § 928b, Article 128b, Domestic violence (Cornell LII)
- 10 U.S.C. § 930, Article 130, Stalking, subsection (b) definitions (Cornell LII)
- 10 U.S.C. § 801, Article 1, Definitions, paragraph (17) (Cornell LII)
- 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
- Executive Order 14130, 2024 Amendments to the Manual for Courts-Martial, 89 Fed. Reg. 105343 (govinfo)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 77.c(5)(c), ¶ 78a
General information about military law, not legal advice for any individual case.