Defending Our Defenders Worldwide
Article 128 UCMJ Penalties and Sentencing Guide
The penalties for an Article 128 UCMJ conviction are not academic. They are career-ending, life-altering, and in some cases, permanent. A dishonorable discharge forecloses federal employment, strips veterans’ benefits, and shadows every job application you will ever complete. A bad conduct discharge does the same. Confinement means years away from your family. And for a significant number of assault offenses — the ones involving domestic violence, a protected victim, or a loaded firearm — those consequences are not theoretical. They are what happens when a service member walks into court without the right defense team.
Understanding exactly what is at stake is not defeatism. It is the starting point for building a defense that matches the severity of the charges.
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Maximum Penalties by Offense — What the Government Can Actually Do to You
The maximum punishment for an Article 128 offense depends entirely on how the charge is framed. The same altercation can be charged as simple assault, assault consummated by a battery, aggravated assault with a dangerous weapon, or assault by strangulation — and the difference in exposure between those charges is the difference between three months and eight years. The Office of Special Trial Counsel (OSTC), which has had exclusive authority over covered assault offenses since December 27, 2023, knows this. They charge high. They intend to convict high. Your defense must be built around that reality.
The following are the maximum punishments authorized under the Manual for Courts-Martial for each Article 128 offense:
Simple Assault
Maximum: Confinement for 3 months; forfeiture of two-thirds pay per month for 3 months. No punitive discharge is authorized.
Simple assault — an attempt or offer to do bodily harm without actual contact — carries the lightest exposure of any assault charge. Critically, no bad conduct discharge or dishonorable discharge is authorized. That makes the difference between a blemish and a career-ending conviction. It also makes simple assault a critical lesser included offense in cases where the government has charged something more serious but the evidence of actual contact or serious injury is thin.
Simple assault with an unloaded firearm is treated as a more serious variant: dishonorable discharge, confinement for 3 years, total forfeiture of all pay and allowances.
Assault Consummated by a Battery
Maximum: Bad conduct discharge (BCD); confinement for 6 months; total forfeiture of all pay and allowances. Sentencing Category 1 (0 to 12 months).
Under the post-December 2023 sentencing reform, assault consummated by a battery falls in Sentencing Category 1, meaning the military judge is constrained to a range of 0 to 12 months. The authorized maximum under the Manual remains 6 months confinement, but the category structure now governs the judge’s discretion in ways it did not before.
A BCD is a punitive discharge — it is not an administrative action. It is imposed by a court-martial, it appears on your DD-214, and it follows you everywhere. The distinction matters because the government can charge an act of offensive touching as assault consummated by a battery and then push for a BCD even where no injury occurred. The military definition of “bodily harm” — any offensive touching, however slight (United States v. Armstrong, 77 M.J. 465 (C.A.A.F. 2018); United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011)) — means that a grab, a push, or a shove qualifies. If the government has charged a BCD-eligible offense, you need to know that.
Assault on a Commissioned or Warrant Officer
Maximum: Dishonorable discharge (DD); confinement for 3 years; total forfeiture of all pay and allowances.
Assaulting a commissioned or warrant officer — any actual offensive contact, whether or not the officer was in the execution of their duties — carries the full DD exposure. The government does not need to prove injury. An unwanted touch to a commissioned officer is sufficient. In environments where rank conflicts, barracks disputes, and alcohol-fueled altercations are common, this charge can be brought in circumstances that would otherwise be misdemeanor-level conduct.
Assault on a Noncommissioned or Petty Officer
In execution of office: Dishonorable discharge; confinement for 3 years; total forfeiture.
Not in execution of office: Bad conduct discharge; confinement for 6 months; total forfeiture.
Whether the NCO or Petty Officer was in the execution of their duties at the time of the alleged assault changes the entire calculus. A scuffle between Soldiers on their own time, off-duty, can still produce a BCD. The same scuffle during a formation or a duty day can produce a DD. The government will argue the more serious charge where the facts permit, and often where they do not.
Assault on a Sentinel or Lookout in the Execution of Duty
Maximum: Dishonorable discharge; confinement for 3 years; total forfeiture.
The UCMJ affords elevated protection to Soldiers, Sailors, Airmen, and Marines standing watch, guarding an installation, or performing sentry duties. Any assault — including attempted or threatened harm — triggers the full dishonorable discharge and 3-year exposure.
Assault on a Person in the Execution of Law Enforcement Duties
Maximum: Dishonorable discharge; confinement for 3 years; total forfeiture.
Any military law enforcement officer — security forces, military police, NCIS agents, CID — performing law enforcement functions is a protected person under this provision. The same exposure as assaulting a sentinel applies.
Battery upon a Child under 16
Maximum: Dishonorable discharge; confinement for 2 years; total forfeiture.
This provision applies to actual offensive contact — battery — against a child. It is distinct from the aggravated assault provisions below, which apply when the assault involves a dangerous weapon or inflicts grievous bodily harm. Defense results in these cases are possible but demand careful handling.
Aggravated Assault with a Dangerous Weapon
Maximum: Dishonorable discharge; confinement for 3 years (base offense); 5 years if the victim was a child under 16; 8 years if the assault involved a loaded firearm. Total forfeiture of all pay and allowances. Sentencing Category 2 (1 to 36 months).
The government uses aggravated assault with a dangerous weapon as a catch-all for any assault where a weapon was present or where the means used could have produced death or grievous bodily harm. The legal standard is not certainty — it is likelihood. But “likelihood” in case law has real limits. In United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015), the CAAF held that a 1-in-500 chance of harm does not meet the “likely to produce” standard. That is a gap worth fighting for.
Sentencing Category 2 applies here for most aggravated assault with a dangerous weapon charges. The judge must sentence within the 1-to-36-month range unless findings support a departure. That range is still significant — but it is not 3 or 8 years. The distinction matters enormously in plea negotiations and at sentencing.
We have represented a Navy Lieutenant Commander at Norfolk facing aggravated assault charges against his family. He was retained. His career was preserved. Not every case with these charges ends in a DD and years of confinement.
Aggravated Assault Intentionally Inflicting Grievous Bodily Harm (GBH)
Maximum: Dishonorable discharge; confinement for 5 years (base offense); 8 years if the victim was a child under 16; 10 years if the assault involved a loaded firearm. Total forfeiture. Category 2 or 3, depending on facts.
Grievous bodily harm includes fractured or dislocated bones, deep cuts, severe contusions, serious burns, and serious internal organ damage. This is not minor injury — but prosecutors push the definition. We push back. The forensic evidence, the medical records, and the expert testimony matter here in ways they do not in simple assault cases.
Assault by Strangulation or Suffocation
Maximum: Dishonorable discharge; confinement for 8 years (11 years if the victim was a child under 16); total forfeiture. Sentencing Category 2 (1 to 36 months).
Strangulation charges have exploded in the post-OSTC era. Under the 2022 NDAA and OSTC operational guidance, strangulation of an intimate partner or family member is a covered offense — meaning the OSTC, not the command, decides whether to prosecute. They prosecute these cases aggressively.
Sentencing Category 2 constrains the judge to 1 to 36 months on strangulation convictions. The maximum authorized under the Manual (8 or 11 years) is not available through the category system unless the judge departs upward based on specific written findings. That structure creates real defense leverage at sentencing — and it changes how you prepare.
We have successfully defended strangulation charges. A Fort Drum Army Sergeant accused of assault, battery, and strangulation against two fellow Soldiers was separated with an honorable discharge, no federal conviction, no confinement — because we presented extensive mental health evidence explaining the circumstances of the offenses. A Fort Belvoir Army Colonel facing strangulation, death threats, and domestic violence charges saw all charges dismissed at the Article 32 hearing after Mr. Freeburg argued against probable cause. A Marine Major at Quantico facing strangulation and DV charges received the same outcome. A Soldier at Fort Jackson accused of sexual assault and strangulation received a full acquittal after being defended by Nathan Freeburg.
Assault with Intent to Commit a Felony
Assault with intent to commit murder or rape of a child or an adult: Dishonorable discharge; confinement for 20 years; total forfeiture.
Assault with intent to commit voluntary manslaughter, robbery, arson, burglary, or kidnapping: Dishonorable discharge; confinement for 10 years; total forfeiture.
These charges represent the most serious end of the Article 128 spectrum. They require proof of specific intent — not just the assault itself, but the intent to accomplish the underlying felony. Challenging intent is often the central task in these cases.
The New Sentencing System — What Changed After December 27, 2023
On December 27, 2023, sentencing reform under the Military Justice Improvement and Increasing Prevention Act became fully effective. For offenses committed on or after that date, military judges — not panels — determine the sentence in most court-martial proceedings. And their discretion is now bounded by sentencing parameters built into the offense categories.
Here is what the new system means in practice:
Judge-alone sentencing. The military judge, not a jury panel, determines the sentence for offenses committed after the effective date. This is a fundamental shift. Panels were historically unpredictable on sentencing — capable of enormous leniency or dramatic severity based on who ended up sitting. Judges operate within the parameter system and are required to explain departures.
Sentencing categories constrain the judge’s discretion. Each covered offense is assigned a sentencing category with a minimum and maximum confinement range. A Category 1 offense (assault consummated by a battery) is bounded at 0 to 12 months. A Category 2 offense (aggravated assault with a dangerous weapon; strangulation) carries 1 to 36 months. The judge cannot go below the floor or above the ceiling without written findings justifying a departure.
Departures require written findings of specific facts. The judge cannot simply sympathize and reduce. To impose a sentence below the floor of the applicable category, the judge must make written findings that specific facts justify the departure. This creates a record — and it creates a framework for defense advocacy. Your task at sentencing is not just to generate sympathy. It is to build a factual record that supports written departure findings.
How this changes defense strategy at sentencing. Under the old system, panel sentencing advocacy often centered on emotion — service record, family impact, tearful character witnesses. All of that still matters, but under the new system it is not sufficient. You need facts that map to departure criteria: documented mental health conditions, extraordinary circumstances of the offense, a thin evidentiary record on key elements. We build the sentencing case the same way we build the trial case — methodically, factually, and with the judge’s written findings requirements in mind.
Collateral Consequences — What a Conviction Costs You Beyond Confinement
The confinement number is what clients fixate on. It is not the whole story. In many Article 128 cases, the collateral consequences are worse than the sentence.
Punitive Discharge
A dishonorable discharge (DD) or bad conduct discharge (BCD) is imposed by the court-martial itself. It appears on your DD-214, it is a matter of public record, and it never goes away. A DD is functionally equivalent to a felony conviction in civilian life — it disqualifies you from most federal employment, triggers background check failures, and bars you from firearm possession under federal law. A BCD produces many of the same consequences. For an E-4 who was planning to finish his 20 and retire, a BCD at year 8 means starting over with a criminal record. For a 19-year veteran, a DD on the eve of retirement is catastrophic. We have seen it, and we fight to prevent it.
Reduction to E-1
A court-martial conviction typically triggers reduction in grade to E-1. For a Staff Sergeant or Sergeant First Class, that means a final paycheck at the lowest enlisted pay grade — and retirement calculations, if any apply, based on that reduced grade.
Total Forfeiture of Pay and Allowances
Total forfeiture applies as part of the maximum sentence for most assault offenses above simple assault. It means you receive nothing — no base pay, no BAH, no BAS — for the duration of your confinement. Families are left without income while the service member is incarcerated.
Federal Criminal Record
A court-martial conviction is a federal criminal conviction. It appears in the National Crime Information Center (NCIC) database. It affects civilian employment applications, professional licensing, housing, and any background check for the rest of your life.
Loss of Veterans’ Benefits
A dishonorable discharge results in the complete loss of VA benefits — healthcare, GI Bill education benefits, VA home loan eligibility, and any service-connected disability compensation. Years of service, deployments, and sacrifice are erased by a single conviction. This is one of the most devastating long-term consequences of a DD, and it is one that service members do not fully appreciate until it is too late.
For officers, a dismissal — the officer-equivalent of a DD — is also the functional equivalent of a felony conviction. An officer dismissed from service faces the same civilian employment consequences, the same loss of benefits, and a permanent record that forecloses most professional opportunities.
The Lautenberg Amendment — The Career-Ender Nobody Discusses Until It Is Too Late
The Lautenberg Amendment (18 U.S.C. Section 922(g)(9)) prohibits any person convicted of a misdemeanor crime of domestic violence from possessing a firearm. Any firearm. Permanently.
For military members, law enforcement officers, and security contractors, this is a career-ender independent of any other punishment. A service member who is convicted of assault consummated by a battery against a family member — even if the conviction is at the special court-martial level, even if the sentence is no confinement and no discharge, even if it is treated as a misdemeanor in every practical sense — is thereafter prohibited from possessing a firearm. That means they cannot carry a weapon. They cannot perform their military duties. They are administratively separated.
There is no exception for career military members. There is no waiver process. The moment the conviction is entered, the service member is a prohibited person under federal firearms law.
This consequence attaches to any assault or battery involving a domestic relationship — a spouse, a former spouse, an intimate partner, a parent of a shared child — regardless of whether the offense was charged under Article 128b (domestic violence) or Article 128 (general assault). The label does not matter. The relationship and the conviction do.
We raise the Lautenberg implications in every domestic assault case because it is often the most severe practical consequence our clients face, and because the negotiation strategy on plea agreements must account for it directly.
Sex Offender Registration
If an assault charge is sexually motivated — including any assault with intent to commit rape or sexual assault — a conviction can trigger mandatory sex offender registration under state law and SORNA (the Sex Offender Registration and Notification Act). Sex offender registration follows a person across every state, affects where they can live and work, and is publicly searchable. It is among the most stigmatizing consequences of any conviction.
Security Clearance Consequences
A court-martial conviction for assault will be reported in any Tier 3 or higher background investigation and will likely result in clearance revocation or denial. Loss of clearance means loss of the job for any service member or veteran in a cleared position — which encompasses a substantial portion of military and post-military employment in the defense industry, intelligence community, and federal contracting.
Civilian Employment and Family Court Consequences
A federal assault conviction affects every employment application that asks about criminal history. For professionals in law, medicine, education, financial services, and government, it can trigger licensing consequences. In family court proceedings — custody disputes, divorce, restraining orders — a court-martial conviction for assault is powerful adverse evidence. It can affect custody arrangements, visitation rights, and child support determinations in ways that compound long after the court-martial ends.
General vs. Special Court-Martial — Why the Level of the Proceeding Matters Enormously
The same assault allegation can be tried at a general court-martial or a special court-martial. The distinction between these two levels is not procedural — it is potentially the difference between felony and misdemeanor exposure.
General Court-Martial (Felony Level)
A general court-martial is the highest level of military tribunal. All maximum penalties are authorized, including dishonorable discharge, years of confinement, and total forfeiture. The government refers cases to general court-martial when it intends to pursue the full weight of its authority. Since the OSTC took over covered offenses, the rate of general court-martial referrals has increased.
Special Court-Martial (Misdemeanor Level)
A special court-martial is capped at a maximum of 1 year confinement, a bad conduct discharge, and 2/3 pay forfeiture for 12 months. It is the military’s functional equivalent of a misdemeanor proceeding although each state determines whether they consider a military conviction to be a felony or misdemeanor. For a service member facing general court-martial charges, achieving resolution at the special court-martial level is often a significant victory — not just because of the reduced sentencing exposure, but because a BCD, while serious, is a different legal instrument than a DD, and the confinement cap at one year creates a fundamentally different negotiating environment.
The charging level matters in ways that compound beyond the sentence itself. A general court-martial conviction is usually treated as a felony. A special court-martial conviction is usually treated as a misdemeanor. Civilian employers, licensing boards, and background investigators apply different standards depending on which proceeding produced the conviction.
We moved an E-6 at Fort Belvoir — charged at general court-martial for alleged assaults against his teenage son — down to the special court-martial level with no confinement. That result would not have been achievable without aggressive discovery, pre-trial motions, and direct negotiations with the OSTC. Achieving that shift requires understanding exactly how the OSTC evaluates cases and what arguments move them.
An NCO facing general court-martial charges for multiple assault incidents was retained in service, lost one rank, received a reprimand, and served no confinement — because the defense work at pretrial was thorough and the sentencing advocacy was built on a complete factual record.
How the Penalty Structure Drives Defense Strategy
Knowing the maximum penalties does not just help you understand the worst case. It tells you where the leverage is. Defense strategy in an Article 128 case is built around the penalty differential between offense levels — and around the collateral consequences that attach regardless of how light the sentence appears on paper.
Pleading to a Lesser Included Offense
Assault consummated by a battery is a lesser included offense of aggravated assault. Simple assault is a lesser included offense of assault consummated by a battery. In cases where the government has charged aggravated assault with a dangerous weapon, arguing that the evidence supports only simple assault or battery — and securing a plea or finding at that level — eliminates the DD exposure entirely. For a service member who is guilty of something but is not a felon, that is the entire ballgame.
Contesting the Level of the Offense at Trial
The line between aggravated and non-aggravated assault is not always clear, and the government does not always have the evidence to prove the aggravating element. In United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015), the CAAF reversed an aggravated assault conviction because the evidence only established a 1-in-500 chance of harm — not “likely” to produce grievous bodily harm or death. We challenge the sufficiency of the aggravating elements in every aggravated assault case where the government’s evidence is thin.
A full acquittal remains the goal. A Fort McNair Army Lieutenant Colonel accused of domestic violence — pushing and grabbing by his ex-wife — was acquitted on all charges after a complete contested trial. His retirement was preserved. A full acquittal is not a fantasy even in cases the government takes to trial.
Sentencing Advocacy Under the New System
Post-December 2023, sentencing advocacy at court-martial looks more like federal sentencing advocacy than it used to. You build a factual record supporting departure findings. Mental health conditions, extraordinary circumstances, service history, deployment impact, and family consequences all feed into that record — but they must be presented in a way that gives the judge a legal basis for written findings, not just a sympathetic narrative.
We presented mental health evidence in the Fort Drum strangulation case — an Army Sergeant charged with assault, battery, and strangulation against two Soldiers — that supported the outcome of an honorable discharge and no confinement, no federal conviction. That result was not achieved through emotional testimony alone. It required building a complete factual record that addressed the circumstances of the offenses and gave the court a path to a result consistent with the evidence.
Contact Cave and Freeburg
If you are facing Article 128 charges — at any level, for any offense — the penalty exposure and collateral consequences require an experienced, aggressive defense. Philip Cave has 45+ years in military criminal defense. Nathan Freeburg has 20+ years. Together they have handled hundreds of assault cases across every branch, worldwide.
You do not need to accept the worst-case outcome. What you need is counsel who understands exactly what the government can do to you, exactly how the sentencing system works, and exactly how to fight back.
Call 800-401-1583 or 202.931.8509
Article 128 UCMJ Penalties — Frequently Asked Questions
What is the maximum penalty for assault under the UCMJ?
It depends on the offense. Simple assault carries a maximum of 3 months confinement with no punitive discharge authorized. At the other end, assault with intent to commit murder or rape carries 20 years confinement and a dishonorable discharge. Aggravated assault with a dangerous weapon (the most commonly charged serious assault) carries up to 3 years for the base offense, up to 8 years if a loaded firearm was used. The specific offense charged controls the maximum, and the OSTC charges at the highest level the evidence will support.
What is the difference between a dishonorable discharge and a bad conduct discharge?
Both are punitive discharges imposed by a court-martial — they are not administrative separations. A dishonorable discharge (DD) is the most severe; it is reserved for general court-martial convictions of serious offenses and is treated as the functional equivalent of a felony conviction in civilian life. A bad conduct discharge (BCD) can be imposed by either a general or special court-martial and, while serious, is not legally equivalent to a DD. Both appear on your DD-214, both result in loss of VA benefits, and both create permanent federal criminal records. The difference matters primarily for civilian employment, government benefits eligibility, and the degree of stigma that follows you.
How does the new sentencing system work after December 27, 2023?
For offenses committed on or after December 27, 2023, military judges — not panels — determine the sentence. Each offense is assigned a sentencing category that sets a floor and ceiling for confinement: Category 1 is 0 to 12 months, Category 2 is 1 to 36 months, and Category 3 is 30 to 120 months. The judge cannot depart from this range without making written findings of specific facts justifying the departure. This system creates both constraints and opportunities — it limits the government’s ability to obtain a runaway sentence, but it also means that securing a below-floor sentence requires a factual record, not just sympathy. Defense strategy at sentencing is fundamentally different under this system than it was before 2024.
What is the Lautenberg Amendment and why does it matter for military members?
The Lautenberg Amendment (18 U.S.C. Section 922(g)(9)) prohibits anyone convicted of a misdemeanor crime of domestic violence from possessing a firearm — permanently, with no waiver. For service members, this means that any assault or battery conviction involving a domestic relationship (spouse, intimate partner, family member) — even a special court-martial conviction, even a conviction with no confinement — results in the inability to carry a weapon. That ends a military career. It also affects law enforcement, security contractors, and anyone whose civilian job requires firearm possession. We treat the Lautenberg consequences as a central issue in every domestic assault case because the plea agreement strategy must specifically address it. Accepting a conviction that triggers Lautenberg without fully understanding that consequence is one of the most consequential mistakes a service member can make.
Does simple assault carry a punitive discharge?
No. Simple assault under Article 128 does not authorize a punitive discharge — no BCD, no DD. The maximum is 3 months confinement and forfeiture of two-thirds pay for 3 months. This is why negotiating a plea to simple assault, or arguing at trial that the evidence only supports simple assault, is often a critical defense objective. Eliminating discharge eligibility changes the entire sentence landscape and the collateral consequences a service member faces.
What are the collateral consequences of an Article 128 conviction beyond the sentence?
Beyond the confinement and discharge, a conviction carries: reduction to E-1 in grade; total forfeiture of pay and allowances; a permanent federal criminal record that appears on all background checks; loss of VA healthcare, education benefits (GI Bill), and home loan eligibility for DD holders; Lautenberg Amendment firearms prohibition for domestic assault convictions; potential sex offender registration if the assault had a sexual component; security clearance revocation or denial; civilian employment consequences including professional licensing issues; and family court consequences including adverse evidence in custody and visitation proceedings. The sentence is often the least of it.
How does an experienced defense attorney affect sentencing outcomes?
Significantly. The new sentencing parameter system requires the judge to make written findings to justify departures — which means the defense must build a factual record that maps to departure criteria, not just present emotional testimony. In our cases, the difference between confinement and no confinement, between a DD and an honorable discharge, between a felony-level general court-martial and a misdemeanor-level special court-martial, has come down to the quality of pre-trial investigation, the depth of mental health or mitigating evidence, the strength of sentencing advocacy, and — critically — the negotiations that happen before trial. A general court-martial charge that becomes a special court-martial resolution with no confinement does not happen on its own. It happens because defense counsel forced it to happen through discovery, motions, and negotiation. That is what 60+ years of combined experience in military criminal defense produces.
Can I be convicted of assault at a court-martial if there was no physical injury?
Yes. Under military law, “bodily harm” is defined as any offensive touching, however slight. See United States v. Armstrong, 77 M.J. 465 (C.A.A.F. 2018); United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011). A push, a grab, an unwanted contact — none of these require visible injury to support a conviction for assault consummated by a battery. The government also does not need physical evidence. Testimony alone can support a conviction. See United States v. Johnson, 54 M.J. 67 (C.A.A.F. 2000). This is why “no injury” is not a defense, and why the defense must be built around affirmative defenses, credibility challenges, and the full factual context of the alleged incident.
By Philip Cave and Nathan Freeburg at www.court-martial.com. (Last reviewed March 30, 2026.)
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