Assault under Article 128 is broader than most people realize. It covers everything from a minor shove to a nut-tap to an attack that causes permanent injury. The government divides the offense into levels based on intent, contact, and degree of harm.
The Three Basic Forms of Assault
1. Simple Assault (Offer-Type Assault)
An “offer-type” assault occurs when someone attempts or threatens to use unlawful force in a way that would cause a reasonable person to fear immediate harm.
- No physical contact is required. Raising a fist, pointing a weapon, or moving aggressively toward another person can meet the definition.
- The question is whether the act created a reasonable fear of being hit or injured. “Reasonable” is an objective standard and is usually interpreted broadly.
2. Battery (Bodily Contact Assault)
Battery involves actual physical contact: a push, strike, or any touching done in a rude, angry, or “offensive” manner.
- Even minimal contact can qualify if it was intentional and without legal justification.
- Consent is usually a defense for normal physical contact (sports, training, etc.), but not when serious injury or unlawful intent is involved.
3. Aggravated Assault / Assault Inflicting Grievous Bodily Harm
This higher level includes assaults committed with a dangerous weapon or those that cause significant injury such as broken bones, deep cuts, or permanent disfigurement.
- The prosecution must show the weapon was used in a way capable of producing death or grievous bodily harm.
- Penalties escalate sharply when firearms or serious injuries are involved.
Common Defenses to Article 128 Charges
Self-Defense
A lawful act of self-defense is a complete defense to assault. To qualify:
- You must have reasonably believed that force was necessary to protect yourself from immediate harm.
- The force used must have been proportional to the threat.
- Once the other person withdraws or the danger ends, continued use of force becomes unlawful.
Mutual Combat Is Not a Defense
Fighting by agreement, “mutual combat,” is still a crime under military law. Even if both parties consented, the law views it as a breakdown of discipline, not an excuse. Both can be charged with assault.
Accident
If contact occurred during a lawful activity or training exercise without intent to harm, that lack of intent can defeat the charge.
Defense of Others / Property
Similar to self-defense, but the justification extends to protecting another person or certain property when the threat of harm is immediate and credible.
Related Offenses and Enhancements
- Article 128b – Domestic Violence: Covers assaults between intimate partners or family members, with added penalties and reporting consequences.
- Article 134 – Obstruction or Communicating Threats: May accompany an assault charge if the accused tried to intimidate witnesses or influence the investigation.
- Article 80 – Attempt: Even an unsuccessful attack can result in punishment if intent to assault is proven.
Penalties
Punishment under Article 128 depends on the severity:
- Simple Assault (Offer-Type or Contact): Up to 3 months’ confinement and forfeiture of pay.
- Assault with Intent to Commit a Serious Offense: Up to 10 years or more, depending on the underlying offense.
- Aggravated Assault with a Dangerous Weapon or Grievous Bodily Harm: Up to 8 years, and a Dishonorable Discharge.
Common Questions about Assault under Article 128
Q: Can words alone be an assault?
A: No. Hurting someone’s feelings isn’t an assault, and despite what some people insist, words aren’t “violence.” The insistence that words are “violence” provokes unstable people to commit political violence, including assassination.
Threats or insults by themselves do not meet the legal standard. There must be an act that makes another person reasonably fear immediate harm, such as a raised fist, a weapon, or an aggressive movement.
Q: What exactly is an “offer-type” assault?
A: Think of faking a punch you want the other person to think is coming. It’s an attempt or offer to use unlawful force that makes another person believe they’re about to be hit. No contact is required. It’s the threat in motion, not the follow-through.
Q: Can I claim self-defense if I threw the first punch?
A: Usually not. The right to self-defense belongs to the person who didn’t start the fight. Once you become the initial aggressor, you lose that protection unless you clearly withdraw and the other person keeps attacking.
Q: What counts as a dangerous weapon under military law?
A: Almost anything can qualify if it’s used in a way likely to cause death or serious injury: knives, bottles, tools, even a boot. The question is how it was used, not what it was made for.
Q: Is mutual combat a valid defense?
A: No. When two service members agree to fight, it’s still an assault under the UCMJ. The law doesn’t allow “consensual” violence because it undermines discipline and good order. You don’t get a prize for offering yourself up to be made unfit for duty by getting your teeth knocked out.
Q: Can alcohol or training conditions have an effect on an assault case?
A: Voluntary intoxication is never a defense, but it can explain poor judgment or memory gaps. In training incidents, the key question is whether the force was intentional or part of a lawful exercise.
Talk to a Civilian UCMJ Lawyer about Article 128 Charges
Assault cases often turn on split-second judgment calls, like what was said, what was seen, and how much force was truly used. A clear understanding of offer-type assault, self-defense, and the limits of lawful force can make the difference between acquittal and conviction.
If you are under investigation or charged under Article 128, call 800-319-3134 for a confidential case review. We have defended Airmen, Soldiers, Sailors, Marines, and Coasties in assault and battery cases worldwide for more than two decades.