Article 128, UCMJ, Assault and Battery. "Self-Defense Is The Most Common Defense"

Posted by Ernesto Gapasin | Oct 27, 2021 | 0 Comments

Article 128, UCMJ, covers charges for Assault and Battery.  The Article states:
(a) Assault. 
Any person subject to this chapter [10 USCS §§ 801 et seq.] who, unlawfully and with force or violence—
(1) attempts to do bodily harm to another person;
(2) offers to do bodily harm to another person; or
(3) does bodily harm to another person;
is guilty of assault and shall be punished as a court-martial may direct.
(b) Aggravated assault. 
Any person subject to this chapter [10 USCS §§ 801 et seq.]—
(1) who, with the intent to do bodily harm, offers to do bodily harm with a dangerous weapon;
(2) who, in committing an assault, inflicts substantial bodily harm or grievous bodily harm on another person; or
(3) who commits an assault by strangulation or suffocation;
is guilty of aggravated assault and shall be punished as a court-martial may direct.
In the types of Military Courts-Martial Trials we typically see, assault requires that the accused engaged or intended to inflict some type of injury on another.  There are various types of assault under the UCMJ, but what is most commonly seen is that engagement between two individuals in a bar fight, for example.  So we see bar fights, we also see a lot of domestic violence situations involving a husband and wife or a boyfriend and girlfriend.  Obviously, the varieties and multitudes of incidents are too many to count.  Ultimately, however, these are the two most common scenarios we see at Gapasin Law Group.  It is likely that most Court-Martial Lawyers will take the position that the best defense against charges under Article 128 is to show facts supporting self-defense.  If someone is drunk and attempting to punch you at a bar, then the law clearly allows a certain degree of self defense.  Even in the safety of one's own home, a spouse can become violent, whether they are male or female.  If a spouse lunges at you, then self-defense is a recognized defense to being charged with assault and battery.  The type and level of self-defense has to be perceived as reasonable.  If acting in self-defense is not reasonable, then the defense simply will not be believed by a panel.  If you are facing charges under Article 128 and you believe you have a case for self-defense, contact Gapasin Law Group, LLC at 1-(888) 919-UCMJ (8265).  You can also email us on our website at

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Ernesto Gapasin



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