UCMJ Article 128: Assault
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Article 128 runs from simple assault, punishable by 3 months of confinement, to assault with intent to commit murder or rape, punishable by 20 years. An aggravated assault that inflicts grievous bodily harm carries 5 years in ordinary cases, 8 years when the victim is a child under 16, and 10 years only when the injury is inflicted with a loaded firearm. Which rung applies depends on intent, the weapon, the injury, and who the victim was.
How the statute is built
10 U.S.C. § 928 has three subsections:
- (a) Assault: unlawfully and with force or violence attempting to do, offering to do, or doing bodily harm to another person.
- (b) Aggravated assault: offering bodily harm with a dangerous weapon with the intent to do bodily harm; inflicting substantial or grievous bodily harm in committing an assault; or committing an assault by strangulation or suffocation.
- (c) Assault with intent to commit specified offenses: murder, voluntary manslaughter, rape, sexual assault, rape of a child, sexual assault of a child, robbery, arson, burglary, and kidnapping.
Source: 10 U.S.C. § 928. The strangulation and suffocation branch was added by Pub. L. 115-232 in 2018.
Attempt, offer, and battery
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 77.c(2), separates two kinds of simple assault, and the difference decides what the government must prove:
- An attempt-type assault requires a specific intent to inflict bodily harm and an overt act beyond preparation. It can be committed even if the victim never knew.
- An offer-type assault is an unlawful demonstration of violence, intentional or culpably negligent, that creates in another person “a reasonable apprehension of receiving immediate bodily harm.” No intent to hit is required.
The Manual also marks out what is not an assault. Threatening words alone are not, but words combined with a menacing act or gesture can be. An apparent attempt accompanied by an unequivocal statement of an intention not to strike is not. Aiming a pistol at someone so far away that it clearly could not injure is not, because there must be an apparent present ability to inflict the injury.
A battery is an assault in which the harm is actually inflicted, and “bodily harm” means “an offensive touching of another, however slight” (¶ 77.c(1)(a)). No injury is required. Under ¶ 77.c(3)(d), there is no battery if harm is inflicted unintentionally and without culpable negligence, or if a person is touched to attract attention or to prevent injury. A person who is entitled to use force but uses more than required commits a battery.
The aggravated forms and the injury definitions
| Form | What must be proved | Intent required |
|---|---|---|
| Dangerous weapon | An offer of bodily harm, with a dangerous weapon, made with the intent to do bodily harm | Specific intent to do bodily harm; "Culpable negligence will not suffice." |
| Substantial bodily harm | An assault that inflicted substantial bodily harm | General intent; no intent to cause that degree of harm is required |
| Grievous bodily harm | An assault that inflicted grievous bodily harm | General intent; the focus is the degree of harm that resulted |
| Strangulation or suffocation | An assault by impeding breathing or blood circulation through pressure on the throat or neck, or by covering the mouth or nose | Done intentionally, knowingly, or recklessly; no visible injury or intent to kill is required |
The Manual’s definitions in ¶ 77.c(1):
- Substantial bodily harm: 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 function.
A dangerous weapon is defined by use, not design: an object is dangerous “when used in a manner capable of inflicting death or grievous bodily harm” (¶ 77.c(5)(a)(iii)). The Manual’s list includes a bottle, a rock, a piece of pipe, boiling water, drugs, and a rifle butt, and adds that fists, teeth, feet, or elbows may qualify when used that way. No injury is needed for assault with a dangerous weapon.
Victims who raise the maximum
The maximum increases when the victim is a commissioned, warrant, noncommissioned, or petty officer; a sentinel or lookout in the execution of duty; a person performing military or civilian law enforcement duties; or a child under 16 (¶ 77.c(4)). Knowledge of the officer, sentinel, or law enforcement status is an element. The officer victim does not have to be senior to the accused, in the same armed force, or in the execution of office. Knowledge that a child was under 16 is not an element.
When the officer is a superior acting in the execution of office, the more specific articles apply: Article 89 for a superior commissioned officer and Article 91 for a warrant officer, noncommissioned officer, or petty officer.
Fifteen maximums, by type of assault
From ¶ 77.d. All rows except simple assault, assault consummated by a battery, and assault on a noncommissioned or petty officer include a dishonorable discharge and forfeiture of all pay and allowances.
| Offense | Maximum |
|---|---|
| Simple assault | 3 months; forfeiture of two-thirds pay per month for 3 months |
| Simple assault with a firearm or other dangerous weapon | 2 years |
| Simple assault with a loaded firearm | 4 years |
| Assault consummated by a battery | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
| Battery on a child under 16 | 2 years |
| Assault on a commissioned officer, not in the execution of office | 3 years |
| Assault on a warrant officer, not in the execution of office | 18 months |
| Assault on a noncommissioned or petty officer, not in the execution of office | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
| Assault on a sentinel, lookout, or law enforcement person in the execution of duty | 3 years |
| Aggravated assault with a dangerous weapon | 3 years; child under 16: 5 years; loaded firearm: 8 years |
| Aggravated assault inflicting substantial bodily harm | 3 years; child under 16: 6 years; loaded firearm: 8 years |
| Aggravated assault inflicting grievous bodily harm | 5 years; child under 16: 8 years; loaded firearm: 10 years |
| Aggravated assault by strangulation or suffocation | 5 years; child under 16: 8 years |
| Assault with intent to commit murder, rape, or rape of a child | 20 years |
| Assault with intent to commit voluntary manslaughter, robbery, arson, burglary, kidnapping, sexual assault, or sexual assault of a child | 10 years |
Strangulation of a spouse, intimate partner, dating partner, or immediate family member can instead be charged under Article 128b, domestic violence, where the maximums are higher (8 years, or 11 years for a child under 16).
Assault with intent is not the same as attempt
An assault with intent to commit one of the listed offenses “is not necessarily the equivalent of an attempt to commit the intended offense,” because an assault can be committed without the closeness to completion that an attempt requires (¶ 77.c(6)(a)). There is no assault with intent to commit involuntary manslaughter, since that offense cannot be committed intentionally. In an assault with intent to commit rape, voluntarily desisting after the assault is not a defense.
Time limits
The ordinary limit is five years under 10 U.S.C. § 843(b)(1). Aggravated assault, assault consummated by a battery, and assault with intent to commit specified offenses against a child under 16 are “child abuse offenses” under § 843(b)(2)(B)(ii), which may be tried during the life of the child or within 10 years after the offense, whichever is longer.
Permanent disfigurement or the loss or impairment of a member, organ, or mental faculty can move the charge to Article 128a, maiming, which carries 20 years.
Sources
- 10 U.S.C. § 928, Article 128, Assault (Cornell LII)
- 10 U.S.C. § 928b, Article 128b, Domestic violence (Cornell LII)
- 10 U.S.C. § 843, Article 43, Statute of limitations (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 77 and ¶ 78a.d (as amended by Executive Order 14130, 2024)
General information about military law, not legal advice for any individual case.