UCMJ Article 128 Assault vs Article 128b Domestic Violence: General Violence vs Violence Against Intimate Partners and Family
On this page: 6 sections
Article 128b does not require an assault. It covers five kinds of conduct directed at a spouse, intimate partner, dating partner, or immediate family member, and two of them involve no physical contact with that person at all: committing an offense against property, including an animal, to threaten or intimidate the person, and violating a protection order to threaten or intimidate the person. Article 128 assault, by contrast, requires an attempt, offer, or infliction of bodily harm by force or violence, against anyone.
The relationship is what brings conduct into Article 128b, and it adds up to 3 years to the underlying offense’s maximum.
Article 128b: five forms
Article 128b applies to 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 a spouse, an intimate partner, a dating partner, or an immediate family member of that person … (A) commits an offense under this chapter against any person; or (B) commits an offense under this chapter against any property, including an animal;
(3) with intent to threaten or intimidate a spouse, an intimate partner, a dating partner, or an immediate family member of that person, violates a protection order;
(4) with intent to commit a violent offense against a spouse, an intimate partner, a dating partner, or an immediate family member of that person, violates a protection order; or
(5) assaults a spouse, an intimate partner, a dating partner, or an immediate family member of that person by strangling or suffocating;
Source: 10 U.S.C. § 928b(a) (Article 128b). “Dating partner” was added by Pub. L. 118-31 (December 22, 2023).
The Manual for Courts-Martial defines the key terms (MCM, Part IV, ¶ 78a.c):
- Violent offense means 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.
- Intimate partner means a former spouse, a person with whom one shares a child, a person one lives or has lived with as a spouse, or a person in a romantic or intimate relationship judged by its length, type, and frequency of interaction.
- Dating partner is judged by the length and type of the relationship, the frequency of interaction, and the extent of physical intimacy or sexual contact.
- Immediate family means a spouse, parent, sibling, child, or person to whom one stands in loco parentis, or any other person living in one’s household and related by blood or marriage. The definition is narrower than “relatives.”
- Protection order includes a military protective order enforceable under Article 92 and a protection order as defined in 18 U.S.C. § 2266; one issued by a State, tribal, or territorial court must meet the standards of 18 U.S.C. § 2265.
Article 128, in brief
Article 128(a) punishes attempting, offering, or doing bodily harm to another person unlawfully and with force or violence; Article 128(b) defines aggravated assault as an offer of bodily harm with a dangerous weapon and intent to harm, an assault inflicting substantial or grievous bodily harm, or assault by strangulation or suffocation (10 U.S.C. § 928). It applies regardless of the relationship between the people involved.
How the facts sort
| Conduct | Article 128 | Article 128b |
|---|---|---|
| Pushing a spouse during an argument | Assault consummated by a battery | A violent offense against a spouse, 128b(1) |
| Smashing a partner's phone to frighten the partner | Not an assault on the partner | An offense against property with intent to intimidate, 128b(2)(B) |
| Harming a family member's pet to intimidate the family member | Not an assault on the family member | An offense against an animal with intent to intimidate, 128b(2)(B) |
| Contacting an ex-partner in violation of a military protective order to intimidate | Not an assault | Violation of a protection order, 128b(3) |
| Choking a dating partner | Aggravated assault by strangulation | Strangulation or suffocation, 128b(5) |
| Striking a stranger | Assault | Not covered; no qualifying relationship |
For example, a service member who throws a spouse’s laptop against the wall while shouting threats, without touching the spouse, can face Article 128b(2)(B) if the intent to threaten or intimidate is proved, and the underlying property offense must also be proved. Squeezing the spouse’s neck so as to impede breathing instead raises both aggravated assault by strangulation under Article 128 and Article 128b(5). Whether a relationship meets the definitions turns on the factors ¶ 78a.c lists, and an intent to threaten or intimidate must be proved like any other element.
Maximum punishments
Article 128b’s maximums were revised by Executive Order 14130 of December 20, 2024. Each includes a dishonorable discharge and forfeiture of all pay and allowances, with confinement as follows (MCM, Part IV, ¶ 78a.d, as amended):
| Offense | Maximum confinement |
|---|---|
| Violent offense against a spouse, intimate partner, dating partner, or immediate family member | The underlying offense's maximum plus 3 years, except where the underlying maximum includes death or life |
| Offense against any person or property, including an animal, with intent to threaten or intimidate | The underlying offense's maximum plus 3 years, with the same exception |
| 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 child under 16 | 11 years |
| Strangulation or suffocation, other cases | 8 years |
Article 128’s own maximums range from 3 months for simple assault to 20 years for assault with intent to commit murder, rape, or rape of a child (¶ 77.d(1)(a), (5)(a)). Where every finding of guilty is for an offense committed after December 27, 2023, the military judge determines the sentence in a general or special court-martial, other than in a capital case (10 U.S.C. § 853(b)(1)).
Who decides whether the case goes forward
Domestic violence under Article 128b is a covered offense (10 U.S.C. § 801(17)); assault under Article 128 is not. For covered offenses committed after December 27, 2023, a special trial counsel has exclusive authority to determine whether a reported offense is a covered offense and, once exercising authority, to refer charges to a special or general court-martial, dismiss them, or enter a plea agreement (10 U.S.C. § 824a(c)).
Sources
- 10 U.S.C. § 928b, domestic violence (Article 128b)
- 10 U.S.C. § 928, assault (Article 128)
- 10 U.S.C. § 930, stalking (Article 130)
- 18 U.S.C. § 2266, definitions
- 10 U.S.C. § 801, definitions (Article 1)
- 10 U.S.C. § 824a, special trial counsel (Article 24a)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 77 and ¶ 78a, as amended by Executive Order 14130.
General legal information on Articles 128 and 128b; it does not evaluate any relationship, incident, or protective order. This page reflects the UCMJ as amended through Public Law 119-60 (December 18, 2025) and the Manual for Courts-Martial (2024 edition) as amended by Executive Order 14130.