Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Both Article 93 and Article 128 can apply when a superior harms a subordinate. The confusion arises because cruel treatment sometimes involves physical conduct that could also be charged as assault. Understanding when prosecutors reach for Article 93 versus Article 128 (or both) requires examining what makes cruelty and maltreatment distinct from ordinary assault. The key lies in the relationship between the accused and victim, the nature of the conduct, and the abuse of military authority that Article 93 specifically targets.
Article 93: Abuse of Power Over Subordinates
Article 93 prohibits cruelty toward, or oppression or maltreatment of, any person subject to the accused’s orders. The article exists because military hierarchy creates opportunities for abuse. When someone has authority over another, that authority can be twisted into a weapon. Article 93 addresses this specific danger.
The offense requires a defined relationship: the victim must be subject to the accused’s orders. This typically means the accused has supervisory, command, or other positional authority over the victim. The article protects subordinates from superiors who abuse their authority through cruel, oppressive, or maltreating conduct.
Maltreatment under Article 93 doesn’t require physical contact. It can include verbal abuse, psychological torment, humiliation, imposition of improper duties, deprivation of privileges without justification, or any other treatment that, under the circumstances, is unwarranted, unjustified, and unnecessary for any lawful purpose. The focus is on abuse of the superior-subordinate relationship.
Article 128: Physical Harm Regardless of Relationship
Article 128 addresses assault in its various forms: simple assault, assault consummated by battery, assault with a dangerous weapon, and aggravated assault. The article focuses on physical conduct that threatens or causes bodily harm, regardless of any authority relationship between the parties.
You can commit assault under Article 128 against anyone: a superior, a peer, a subordinate, a civilian, a stranger. The victim’s relationship to you is irrelevant to whether an assault occurred. What matters is whether you committed the physical act constituting assault.
This makes Article 128 both broader (applies to any victim) and narrower (requires physical or threatening conduct) than Article 93. Assault requires some form of physical act or offer to do bodily harm. Maltreatment doesn’t require physical contact at all.
When Both Articles Apply
The overlap occurs when a superior physically abuses a subordinate. A First Sergeant who punches a Private has both assaulted the Private (Article 128) and maltreated someone subject to his orders (Article 93). Both articles may be charged.
Prosecutors often charge both when the facts support it. This approach captures the full scope of the misconduct: the physical violence (assault) and the abuse of authority (maltreatment). At sentencing, the accused faces punishment for both dimensions of their wrongdoing.
However, charging decisions depend on the specific facts. If the physical contact was minor but the maltreatment was severe and ongoing, prosecutors might emphasize Article 93. If the assault was serious but there was no real authority relationship (perhaps the accused had minimal actual supervisory contact with the victim), Article 128 might be the better fit.
Conduct That’s Maltreatment but Not Assault
Many forms of maltreatment involve no physical contact whatsoever. This is where Article 93 operates independently of Article 128:
Verbal abuse and humiliation. A supervisor who routinely berates subordinates with profane, degrading language, particularly in front of others, may be guilty of maltreatment even without ever touching anyone.
Psychological torment. Deliberately isolating a subordinate, spreading rumors about them, or creating a hostile environment can constitute maltreatment.
Improper duty assignments. Using authority to assign degrading, pointless, or excessive duties as punishment or harassment (making someone clean the same floor repeatedly, assigning duties far beyond normal requirements) can be maltreatment.
Withholding entitlements. Improperly denying leave, privileges, or benefits that a subordinate is entitled to can constitute oppression.
Sexual harassment. Using authority to subject subordinates to unwanted sexual attention, comments, or pressure often constitutes maltreatment (and may also violate other articles).
None of these require physical contact. All can be charged under Article 93. None would support an assault charge under Article 128 because there’s no physical component.
Conduct That’s Assault but Not Maltreatment
Assault can occur without any authority relationship:
Peer-on-peer violence. When two service members of equal rank fight, there’s no superior-subordinate relationship. Article 128 applies; Article 93 doesn’t.
Subordinate attacking superior. When a Private assaults a Sergeant, Article 128 applies (along with potentially Article 91 for the assault on an NCO). Article 93 doesn’t apply because the victim wasn’t subject to the accused’s orders.
Violence against civilians. Assaulting a civilian involves no military authority relationship. Article 128 applies; Article 93 doesn’t.
Off-duty personal disputes. An assault arising from a personal matter unrelated to military duties, even between people who happen to have a supervisory relationship at work, might be charged only under Article 128 if the maltreatment element (abuse of military authority) is absent.
The “Subject to Orders” Requirement
Article 93’s requirement that the victim be “subject to the orders” of the accused is broader than it might initially appear. It doesn’t require a formal chain-of-command relationship. The victim must simply be in a position where they are required to obey the accused’s orders by virtue of military duty.
This can include:
Direct subordinates in the accused’s unit
Personnel temporarily assigned to the accused’s supervision
Trainees under the accused’s instruction
Patients under a medical professional’s care
Detainees or prisoners under guard
Service members required to follow the accused’s orders due to duty position (such as military police directing others)
The relationship must exist at the time of the maltreatment. If someone who used to be your subordinate is no longer subject to your orders, maltreating them now isn’t an Article 93 violation (though it might be assault, harassment, or another offense).
Punishment Comparison
Article 93 carries a maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year.
Article 128 punishments vary by the type of assault:
Simple assault: confinement for three months and forfeiture of two-thirds pay for three months
Assault consummated by battery: bad-conduct discharge, forfeiture of all pay and allowances, confinement for six months
Assault with a dangerous weapon or means likely to produce death or grievous bodily harm: dishonorable discharge, forfeiture of all pay and allowances, confinement for three years
Aggravated assault (with intent to commit certain offenses or resulting in grievous bodily harm): dishonorable discharge, forfeiture of all pay and allowances, confinement for five to ten years depending on circumstances
For minor physical contact, Article 93’s maltreatment charge may actually carry higher maximum punishment (one year) than simple assault (three months) or assault consummated by battery (six months). This reflects the military’s view that abuse of authority aggravates the misconduct.
For serious physical violence, the aggravated assault provisions of Article 128 carry substantially higher punishment than Article 93’s one-year maximum. In cases involving severe physical harm, Article 128 becomes the more serious charge.
Typical Fact Patterns
Maltreatment only (no assault):
A Drill Instructor repeatedly singles out one recruit for verbal abuse, calling her degrading names, questioning her intelligence, and mocking her appearance in front of the entire platoon. The conduct occurs daily for weeks. No physical contact ever occurs. This is maltreatment under Article 93 but not assault under Article 128.
A supervisor, angry at a subordinate’s work performance, assigns him to clean the latrines every day for a month while giving other subordinates no such duties. The punishment is disproportionate and motivated by personal animus rather than legitimate disciplinary purposes. This may constitute maltreatment without any physical component.
Assault only (no maltreatment):
Two Corporals of equal rank get into a fistfight over a personal dispute. Neither has authority over the other. Both can be charged with assault under Article 128. Neither can be charged under Article 93 because there’s no superior-subordinate relationship.
Both maltreatment and assault:
A Staff Sergeant, frustrated with a Private’s performance, grabs the Private by the collar and shoves him against a wall while screaming obscenities. The physical grabbing and shoving constitutes assault (battery). The entire episode, including the physical violence, verbal abuse, and use of positional authority to intimidate, constitutes maltreatment. Both charges may be brought.
A training instructor, as “discipline,” makes a trainee do push-ups until the trainee collapses, then kicks the trainee while he’s on the ground. The kicks are assault. The entire course of conduct, using training authority to abuse the trainee, is maltreatment. Both articles apply.
Intent and Mental State
Article 128 assault generally requires an intent to do bodily harm or an act that would reasonably be expected to cause fear of bodily harm. Negligent conduct that accidentally causes harm may not constitute assault.
Article 93 maltreatment focuses on whether the conduct was unwarranted, unjustified, and unnecessary for any lawful purpose. The accused doesn’t have to specifically intend to be cruel; conduct that objectively constitutes maltreatment can violate the article even if the accused believed they were acting appropriately. However, the accused’s purpose and mindset can be relevant to whether conduct was “unwarranted” or served a legitimate military purpose.
This means that genuinely harsh training or discipline that serves a legitimate military purpose might not be maltreatment, even if it causes discomfort or hardship. But the same conduct, if imposed for improper purposes (personal animosity, harassment, punishment beyond what’s justified), becomes maltreatment.
Defenses
For Article 93, common defenses include:
The victim wasn’t actually subject to the accused’s orders
The conduct served a legitimate military purpose (training, discipline within proper bounds)
The conduct wasn’t objectively cruel, oppressive, or maltreating under the circumstances
The accused was following proper procedures or regulations
For Article 128, common defenses include:
Self-defense
Defense of others
Accident (lack of intent)
The conduct didn’t constitute assault (no physical act or threat)
Consent (in limited circumstances)
When both charges are brought, the defense must address both sets of elements. Successfully defending against assault (for example, arguing self-defense) might not eliminate the maltreatment charge if the broader pattern of conduct still constitutes abuse of authority.
Career and Collateral Consequences
Both offenses carry serious implications for military careers and post-service life.
Article 93 convictions indicate abuse of authority, which is particularly damaging for anyone in a leadership position. The military places enormous trust in those who supervise others. Betraying that trust through maltreatment suggests fundamental unfitness for leadership roles. NCOs and officers convicted of maltreatment face not only punishment but permanent stigma that effectively ends advancement potential.
Article 128 convictions indicate a propensity for violence. Beyond military consequences, assault convictions can affect civilian employment, security clearances, and in some cases, the right to possess firearms under federal law (particularly for convictions involving domestic violence).
When both offenses are charged and convicted, the combined effect reinforces both concerns: this person abuses authority and uses violence. Such a record makes continued military service and favorable discharge characterization extremely unlikely.
Frequently Asked Questions
Can a peer (someone of equal rank with no authority over me) be charged with maltreatment under Article 93 for harassing or bullying me?
Generally, no. Article 93 specifically requires that the victim be “subject to the orders” of the accused. Peers of equal rank typically don’t have authority to give each other orders. However, there are exceptions. If someone of equal rank has been placed in a position of authority over you (such as being designated as team leader or shift supervisor), they might have the required authority relationship even without a rank difference. Additionally, conduct that doesn’t fit Article 93 might still violate other provisions: Article 128 if there’s physical violence, Article 117a for bullying and hazing in certain circumstances, or Article 134 for other misconduct. The absence of an Article 93 violation doesn’t mean the conduct is acceptable or unpunishable.
If I’m a supervisor who yelled at a subordinate once during a stressful moment, can I be charged with maltreatment?
A single instance of raised voice during a stressful situation is unlikely to constitute maltreatment, depending on the specifics. Article 93 targets conduct that is “unwarranted, unjustified, and unnecessary for any lawful purpose.” Supervisors are permitted to give firm correction, express disappointment, and maintain discipline. The line is crossed when the conduct becomes cruel, oppressive, or maltreating: personal attacks, degrading language, humiliation for its own sake, or severity grossly disproportionate to any legitimate purpose. A momentary sharp word differs from a pattern of verbal abuse or a single episode of extreme verbal cruelty. Context matters enormously, including what was said, how it was said, whether it served any legitimate purpose, and how a reasonable person would perceive it.
If I’m accused of both assault and maltreatment for the same incident, can I be punished for both offenses?
Yes, potentially. Assault and maltreatment have different elements and protect different interests. Assault punishes the physical violence itself. Maltreatment punishes the abuse of authority. When both occur in the same incident, charging and punishing both captures the full scope of the misconduct. However, military courts apply multiplicity rules to ensure punishment isn’t unreasonably duplicative. If the assault was minor and essentially the same conduct as the maltreatment, there might be grounds to argue for merger at sentencing. If the assault was significant (causing real injury) and the maltreatment included both the assault and additional abusive conduct, separate punishment for each may be appropriate. Your defense attorney can assess whether multiplicity arguments apply to your specific situation.