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 115 and Article 128 address conduct that threatens or harms others, but they focus on different types of behavior. Article 115 Communicating Threats punishes threatening communications themselves, regardless of any physical action. Article 128 Assault punishes attempts or offers to do bodily harm, or the actual infliction of harm. One is about what you say or write; the other is about what you do physically. Understanding this distinction matters because threatening words can be criminal even without any physical confrontation.
The Conduct Distinction
Article 115 Communicating Threats addresses:
Verbal or written threats
Communications threatening harm to person or property
The words themselves are the offense
No physical act required
Article 128 Assault addresses:
Attempts to do bodily harm
Offers to do bodily harm (placing someone in fear)
Actually inflicting bodily harm (battery)
Physical conduct, not just words
Different Harms
Communicating threats causes harm through:
Fear and intimidation from the message
Psychological impact on the recipient
Disruption to the recipient’s sense of safety
Potential chilling of the recipient’s actions
Assault causes harm through:
Physical violence or its immediate threat
Bodily injury or fear of imminent injury
Direct confrontation with violence
The threat in assault is immediate and physical; in communicating threats, it may be future or conditional.
Article 115: Communicating Threats Elements
Communicating threats requires:
A communication. Verbal, written, or electronic message.
Threatening content. The message threatens to injure person, property, or reputation.
Wrongful communication. The threat was made without justification.
The communication was made. The threat was actually transmitted or delivered.
The threat doesn’t need to be carried out; the communication itself is the offense.
Article 128: Assault Elements
Assault includes:
Simple assault. Attempting to do bodily harm or offering to do bodily harm that creates reasonable fear of immediate harm.
Assault consummated by battery. Actually striking or making harmful contact.
Aggravated assault. Using dangerous weapons, causing serious injury, or other aggravating factors.
Physical action toward the victim is required.
The Immediacy Question
Communicating threats often involves future harm:
“I’m going to get you tomorrow”
“When I see you again, you’re dead”
“Your family will pay for this”
The threatened harm may be distant in time.
Assault requires immediacy:
An attempt to hit someone now
Raising a fist in someone’s face
Pointing a weapon at someone present
The threat of harm is immediate and present.
Typical Fact Patterns
Clear communicating threats (Article 115):
A service member sends a text message: “I’m going to kill you and your whole family.” This written threat of harm is communicating threats regardless of any physical encounter.
A service member leaves a voicemail: “When you come back from leave, I’m going to make you suffer.” A verbal threat communicated without physical presence.
A service member posts on social media: “Someone should teach that NCO a lesson with a bullet.” Threatening communication even without direct contact.
Clear assault (Article 128):
A service member swings a fist at a colleague during an argument. Physical attempt to cause harm.
A service member points a knife at someone and says “I’ll cut you right now.” The physical weapon and immediate context make this assault.
A service member corners someone, raises their fist, and says “You’re about to get hurt.” The immediate physical threat is assault.
Both offenses:
A service member sends threatening texts for weeks (Article 115). Later, they confront the victim and swing at them (Article 128). Both offenses occurred at different times.
Overlap: Assault by Offer
Article 128 assault includes “offering to do bodily harm” that places someone in reasonable fear. This can overlap with communicating threats when:
The threat is made face-to-face
The threat creates immediate fear
The threat involves physical posturing
Example: A service member gets in someone’s face and says “I’m going to beat you right now.” This could be both:
Article 115: Communicating a threat
Article 128: Assault by offer (placing in fear of immediate harm)
The immediacy and physical context determine whether assault applies.
Punishment Comparison
Article 115 (Communicating Threats):
Dishonorable discharge, forfeiture of all pay and allowances, confinement for 3 years
Article 128 (Assault):
Simple assault: confinement for 3 months
Assault consummated by battery: bad-conduct discharge, confinement for 6 months
Aggravated assault: dishonorable discharge, confinement up to 10 years (varies by type)
Communicating threats can carry serious punishment; aggravated assault carries the most severe.
Electronic Threats
Modern threats often occur electronically:
Text messages
Social media posts
Emails
Online messages
Article 115 applies to all communication methods. Electronic threats are treated the same as in-person verbal threats.
The “True Threat” Requirement
Not every angry statement is a criminal threat:
True threats involve genuine expressions of intent to harm that a reasonable person would take seriously.
Hyperbole or venting might not be criminal if no reasonable person would believe the speaker intended actual harm.
Context matters: “I could kill you” said jokingly differs from the same words said menacingly.
Courts examine whether a reasonable recipient would perceive a genuine threat.
Defenses
For communicating threats:
The statement wasn’t actually threatening
The statement was hyperbole or jest that no reasonable person would take seriously
The accused didn’t make the communication
The communication was privileged or justified
For assault:
Self-defense
Defense of others
No attempt or offer was made
No reasonable fear was created
Consent (very limited applicability)
Conditional Threats
Threats conditioned on behavior can still be criminal:
“If you testify, I’ll kill you”
“Stay away from my girlfriend or I’ll hurt you”
“Drop the charges or your car gets destroyed”
Conditional threats are still threats under Article 115 because they communicate intended harm.
Chain of Command Implications
Threats within military context have special concerns:
Threats to superiors undermine authority
Threats to subordinates create toxic command climate
Threats affecting duties impact mission
Intimidation of witnesses obstructs justice
Military context often aggravates how threats are treated.
Frequently Asked Questions
If I said something threatening in anger but didn’t mean it, can I still be charged?
Potentially. The question is whether a reasonable person would perceive your statement as a genuine threat. Courts consider context: your tone, your relationship with the recipient, the specific words used, any accompanying actions, and whether you had apparent ability to carry out the threat. “I said it in anger” isn’t an automatic defense if the statement would reasonably be taken as a true threat. However, obvious hyperbole that no reasonable person would take literally may not constitute criminal threats. The safest approach is to never make threatening statements regardless of your emotional state.
What’s the difference between a threat and assault when I’m face-to-face with someone?
The key is immediacy and physical action. If you make a face-to-face threat that creates reasonable fear of immediate harm (getting in someone’s face, raising fists, displaying a weapon while threatening), that’s likely assault by offer even if you don’t touch them. If you make a threat about future harm (“I’ll get you later”) without creating fear of immediate harm, that’s communicating threats but not assault. If you say something threatening AND take physical action toward them, you may have committed both offenses. The physical component and immediacy of threatened harm distinguish assault from mere threatening communication.
Can I be charged for threatening someone’s property rather than their person?
Yes. Article 115 covers threats to injure property as well as threats to injure persons. Threatening to destroy someone’s car, burn their home, or damage their belongings can constitute communicating threats. The threat must be wrongfully made and serious enough to constitute a genuine threat of property damage. Threats to reputation may also be covered depending on circumstances. The offense isn’t limited to threats of physical violence against people.