UCMJ Article 115 Communicating Threats vs Article 128 Assault: Words of Harm vs Acts of Violence
On this page: 6 sections
Words alone can be a threat under Article 115 but not an assault under Article 128. The Manual for Courts-Martial says “The use of threatening words alone does not constitute an assault,” though words “accompanied by a menacing act or gesture” may be (MCM, Part IV, ¶ 77.c(2)(c)(ii)). Article 115 reaches a threat to injure a person, property, or reputation, now or in the future, with no act at all; an offer-type assault under Article 128 requires a demonstration of violence that puts someone in reasonable apprehension of immediate bodily harm.
The time frame is the dividing line: assault concerns immediate harm to the body; a threat can concern later harm to the body, to property, or to reputation.
Article 115
(a) … Any person subject to this chapter who wrongfully communicates a threat to injure the person, property, or reputation of another shall be punished as a court-martial may direct.
Source: 10 U.S.C. § 915(a) (Article 115).
Subsections (b) and (c) cover threats, and knowingly false threats, involving explosives, weapons of mass destruction, biological or chemical agents, or hazardous materials. The communication must be one a reasonable person would understand as expressing a present determination or intent to injure, and it is wrongful if the accused sent it “for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.” Proof that the accused actually intended to carry it out is not required (¶ 53.c(1)-(2)).
Article 128
(a) … Any person subject to this chapter 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
Source: 10 U.S.C. § 928(a) (Article 128).
Aggravated assault under subsection (b) covers an offer of bodily harm with a dangerous weapon and intent to do bodily harm, an assault inflicting substantial or grievous bodily harm, and assault by strangulation or suffocation; subsection (c) covers assault with intent to commit listed serious offenses.
The form of assault closest to a threat is the offer type: “an unlawful demonstration of violence, either by an intentional or by a culpably negligent act or omission, which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm” (¶ 77.c(2)(b)(ii)). There must be “an apparent present ability to inflict the injury”; aiming a pistol from a distance at which it clearly could not injure is not an assault (¶ 77.c(2)(d)(ii)).
Where words become an assault
The Manual gives three points that sort mixed cases (¶ 77.c(2)(c)):
- Words plus a menacing act. Threatening words with a menacing gesture can be an assault, “since the combination constitutes a demonstration of violence.”
- Words that negate intent. If the circumstances known to the person menaced clearly negate an intent to do bodily harm, there is no assault. The Manual’s example is a person who shakes a stick within striking distance while saying, “If you weren’t an old man, I would knock you down.”
- Conditional demands. An offer to inflict injury instantly unless the other person complies with a demand the assailant has no right to make is an assault. The Manual’s example: pointing a pistol and saying, “If you don’t hand over your watch, I will shoot you.”
How the facts sort
| Communicating a threat (Article 115) | Offer-type assault (Article 128) | |
|---|---|---|
| Physical act needed | No; a communication is enough | Yes, a demonstration of violence |
| Harm threatened | Injury to person, property, or reputation | Bodily harm |
| Timing | Present or future | Immediate |
| Victim's reaction | Not required; the message must reach the person or a third party | Reasonable apprehension of immediate bodily harm |
| Mental state | Purpose of threatening, or knowledge it will be viewed as a threat | Intentional or culpably negligent act; no specific intent to injure required |
For example, a service member who sends a coworker a message saying, “I’ll ruin your name around the unit and wreck your car next week,” communicates a threat to reputation and property under Article 115, and no assault has occurred because there is no demonstration of immediate violence. Face to face, the same words shouted while the service member raises a fist and steps toward the coworker are another matter: the gesture creates the demonstration of violence that can make an offer-type assault under Article 128, and the words can still support Article 115. Whether a reasonable person would have feared immediate harm, and what the speaker meant or knew, are measured by the circumstances of the encounter.
Maximum punishments
| Offense | Maximum (MCM, Part IV, ¶ 53.d and ¶ 77.d) |
|---|---|
| Communicating a threat, generally | Dishonorable discharge, forfeiture of all pay and allowances, 3 years |
| Threats and false threats involving explosives or similar means | Dishonorable discharge, forfeiture of all pay and allowances, 10 years |
| Simple assault | Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months |
| Simple assault with a firearm or other dangerous weapon | Dishonorable discharge, forfeiture of all pay and allowances, 2 years; 4 years with a loaded firearm |
| Assault consummated by a battery | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
| Aggravated assault with a dangerous weapon | Dishonorable discharge and total forfeitures; 3 years, 5 years on a child under 16, 8 years with a loaded firearm |
| Aggravated assault inflicting substantial bodily harm | Dishonorable discharge and total forfeitures; 3 years, 6 years on a child under 16, 8 years with a loaded firearm |
| Aggravated assault inflicting grievous bodily harm | Dishonorable discharge and total forfeitures; 5 years, 8 years on a child under 16, 10 years with a loaded firearm |
| Aggravated assault by strangulation or suffocation | Dishonorable discharge and total forfeitures; 5 years, 8 years on a child under 16 |
Higher Article 128 maximums also apply to assaults on certain officers, sentinels, and law enforcement personnel, and to assault with intent to commit listed offenses (¶ 77.d). 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, except in a capital case (10 U.S.C. § 853(b)(1)).
Sources
- 10 U.S.C. § 915, communicating threats (Article 115)
- 10 U.S.C. § 928, assault (Article 128)
- 10 U.S.C. § 853, findings and sentencing (Article 53)
- Manual for Courts-Martial, United States (2024 edition), Part IV, ¶ 53 and ¶ 77.
General information on Articles 115 and 128; it does not evaluate any statement, message, or confrontation. 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.