Article 128b, UCMJ: Domestic Violence and Your Rights as a Servicemember

By Stephanie Kral | January 23, 2024


Domestic violence is a serious offense under military law, governed by Article 128b of the Uniform Code of Military Justice (UCMJ). If you are a servicemember, understanding what constitutes domestic violence, the legal criteria for guilt, and your options for defense is essential to safeguarding your career, reputation, and personal freedom. This article provides an in-depth explanation of Article 128b, its elements, potential penalties, and steps to take if accused.

What Is Domestic Violence Under Article 128b?

Article 128b addresses domestic violence involving spouses, intimate partners, and immediate family members. The law outlines specific actions that could result in criminal charges under this provision:

  1. Committing a Violent Offense:
    • Physical acts such as assault, battery, or other violent crimes directed toward a spouse, intimate partner, or family member fall under this category.
  2. Acts Intended to Threaten or Intimidate:
    • Offenses against a person or property (including animals) committed with the intent to intimidate or threaten a spouse, intimate partner, or family member.
  3. Violation of a Protection Order:
    • Any act that breaches a lawful protection order with the intent to intimidate, threaten, or commit a violent offense.
  4. Strangulation or Suffocation:
    • Assault involving strangulation or suffocation is treated with heightened severity and may carry significant penalties.
  5. Acts Involving Children:
    • If the victim is a child under the age of 16, additional penalties may apply.

Elements of the Offense

For a servicemember to be found guilty of domestic violence under Article 128b, the prosecution must prove certain elements beyond a reasonable doubt, including:

  • The accused committed a violent act or offense.
  • The act was directed toward a spouse, intimate partner, or immediate family member.
  • The accused acted with intent to threaten, intimidate, or harm the victim.
  • In cases involving protection orders, the prosecution must demonstrate that a lawful order was in place and that the accused knowingly violated it.

The burden of proof rests on the prosecution to establish these elements beyond a reasonable doubt. Even unintentional acts or misunderstandings can sometimes lead to charges, underscoring the importance of understanding your rights and options.

Penalties for Domestic Violence Under Article 128b

The consequences of a domestic violence conviction under Article 128b can be life-altering. Maximum punishments include:

  • Dishonorable Discharge:
    • A conviction can result in separation from the military under dishonorable conditions, effectively ending your military career.
  • Forfeiture of All Pay and Allowances:
    • Financial repercussions can extend beyond the immediate penalties, impacting your long-term financial stability.
  • Confinement:
    • Depending on the offense, confinement can range from 3 years to life imprisonment. Specific penalties include:
      • Violent offenses: Confinement for up to the maximum penalty of the underlying offense plus an additional 3 years.
      • Violation of a protection order: Up to 5 years for intent to commit a violent offense.
      • Strangulation or suffocation: Up to 11 years if the victim is a child under 16; otherwise, up to 8 years.

Common Defenses Against Allegations

If you are facing allegations of domestic violence, it is critical to understand your defense options. While each case is unique, common defenses include:

  1. Lack of Evidence
  • The prosecution must prove guilt beyond a reasonable doubt. A lack of credible evidence or inconsistent witness testimony can weaken their case.
  1. Mutual Combat or Consent
  • Situations involving mutual physical altercations or consensual actions may not meet the legal criteria for domestic violence.
  1. Mistaken Identity
  • Eyewitness misidentifications or false accusations can lead to wrongful charges. Evidence demonstrating your innocence can challenge these claims.
  1. Unintentional Actions
  • Accidental actions without intent to harm do not meet the intent requirement under Article 128b.
  1. Procedural Errors
  • Violations of your rights during the investigation, such as unlawful searches or coercive interrogations, can render evidence inadmissible.

Why Allegations of Domestic Violence Are Unique in the Military

Domestic violence allegations in the military differ from civilian cases in several ways:

  • Command Involvement:
    • Military commanders are often involved in the handling domestic violence allegations, including issuing protective orders.
  • Military Protective Orders (MPOs):
    • These orders are enforceable under military law and violations can lead to separate charges. To learn more about MPOs, look at this blog post.
  • Career Implications:
    • Beyond legal penalties, allegations can result in administrative actions, loss of security clearance, and adverse impacts on promotions or assignments.

Steps to Take if Accused of Domestic Violence

If you are accused of domestic violence, it is essential to act quickly and strategically to protect your rights:

  1. Consult an Experienced Civilian Military Defense Attorney:
    • Military law is complex, and navigating the system requires specialized expertise. A civilian military defense attorney offers:
      • Unbiased Advocacy: Independent of the chain of command, we work solely for your interests.
      • Deep Expertise: We understand the nuances of the UCMJ and can craft a tailored defense strategy.
      • Comprehensive Support: From pre-trial motions to court-martial representation, we ensure your rights are protected at every stage.
  2. Avoid Discussing the Case:
    • Refrain from discussing allegations with anyone other than your attorney. Statements made to friends, family, or command can be used against you.
  3. Preserve Evidence:
    • Collect and safeguard any evidence that supports your version of events, such as text messages, emails, or photographs. Compile a list of witnesses to share with your attorney.
  4. Comply with Protective Orders:
    • Even if you believe the order is unjust, comply fully to avoid additional charges.
  5. Maintain Professional Conduct:
    • Demonstrating professionalism and cooperation can positively influence the outcome of your case.

Why You Need a Civilian Military Defense Attorney

Facing domestic violence allegations under Article 128b is a daunting experience. A civilian military defense attorney can provide the specialized expertise you need to navigate the military justice system effectively. We can assist with all aspects of your case, from investigation to trial, ensuring your rights are upheld.

Final Thoughts

Domestic violence allegations under Article 128b are serious and can have far-reaching consequences. Understanding the law, potential penalties, and your defense options is essential to protecting your future. If you are accused, remember:

  • Act quickly to consult with an experienced civilian military defense attorney.
  • Preserve evidence and comply with all legal and procedural requirements.
  • Remain proactive and informed about your rights and responsibilities.

Your career, reputation, and freedom are on the line. Don’t navigate this challenging situation alone—seek professional legal guidance to secure the best possible outcome. Contact Kral Military Defense now.