Article 128b, Uniform Code of Military Justice (UCMJ): Domestic Violence and Intimate Partner Violence
What to do if you are a military member accused of domestic violence or facing court-martial for Article 128b, UCMJ
Being accused of domestic violence can result in criminal charges, jail time, punitive discharge, involuntary separation, and lifelong prohibitions on firearm possession, among other consequences. A military member can face some of these consequences even if their case is never taken to trial. It is imperative to get a military lawyer to assist on your case.
The prevailing attitude is that domestic violence is a problem in the military and needs to be addressed harshly. Therefore, military members who are accused of domestic violence or intimate partner violence should expect to face some form of adverse action, even in cases where there may not be much evidence to prove the allegations, or where the allegations are false or fail to tell the whole story.
The experienced attorneys at Kral Military Defense can defense you at a court-martial, discharge proceeding, or in an investigation for domestic or intimate partner violence. We can help you navigate the limits of confidentiality with FAP, your spouse, and mental health care providers to ensure your own words are not used against you at court-martial or in other actions.
Our lawyers can explain the implications of the action you are facing for both your career and your civilian life and ensure you make an informed decision about what to do in your case. An accusation of domestic or intimate partner violence can have lifelong consequences on both the military and civilian side.
You need an attorney who knows what is involved in a domestic violence allegation – from the moment it’s made through all the administrative and criminal consequences. For an overview of domestic violence accusations in the military, read below. To discuss your case, contact KMD for a free consultation.
There have been recent changes to domestic violence law in the military.
In January 2019 the Uniform Code of Military Justice (UCMJ) was changed to add Article 128b, which specifically criminalizes domestic violence and intimate partner violence. Prior to the addition of Article 128b there was no independent article of the UCMJ dealing with domestic or intimate partner violence.
Cases involving domestic violence or intimate partner violence used to be charged under Article 128, UCMJ as assault consummated by battery or aggravated assault as appropriate for the facts of the case. But now, domestic violence has its own independent punitive article in the UMCJ with Article 128b, UCMJ.
The addition of a specific UCMJ article to address domestic violence coincides with the push for military leaders to do more about domestic violence in the military. Service members accused of domestic violence are at risk for career-ending, lifelong, and potentially criminal consequences.
Why was Article 128b, Uniform Code of Military Justice, Domestic Violence Added to the UCMJ?
If domestic violence was already illegal under the UCMJ, why was a whole new article added in 2019 to specifically say domestic violence is illegal?
The primary reason for the addition of Article 128b, UCMJ is access to firearms. The Lautenberg Amendment is a federal law that makes it illegal for anyone convicted of a crime of domestic violence to possess a firearm. This prohibition on gun possession applies to military members who are convicted of domestic violence at a special court-martial or general court-martial.
A key method of enforcing this law is that law enforcement entities are required to report domestic violence convictions to a central database. When someone, for example, then goes to purchase a firearm or get a job requiring working with firearms and a background check is done, any disqualifying convictions will pop up. The person would then be barred from purchasing the firearm or getting the job.
The issue with the military system was that Article 128, UCMJ covered both crimes that do not constitute domestic violence as well as crimes that do constitute domestic violence. As a result, it was not apparent whether a conviction of Article 128, UCMJ was for domestic violence or not. As a result, military crimes that involved domestic or intimate partner violence were often not recorded as domestic violence convictions, but simply as assault.
Assault can be, but is not necessarily, a disqualifying offense for gun ownership under the Lautenberg Amendment. The formerly broad nature of Article 128, UCMJ meant that oftentimes, military crimes of domestic violence were not properly reported. Thus, military members who were not legally allowed to possess firearms were able to buy guns because their domestic violence convictions were not accurately reported to the database.
This issue was spotlighted in November 2017 when a former Air Force member, who had been previously convicted of domestic violence at a court-martial, perpetrated a mass shooting at a church in Sutherland Springs, Texas. The shooter killed 26 people using a firearm he purchased after he had been convicted in 2012 of domestic violence at a court-martial and had received a bad conduct discharge.
He had been able to purchase the firearm used in the mass shooting because the military had not properly recorded his conviction in the national database. Victims and families of the mass shooting sued the Air Force due to the failure to properly report the shooter’s court-martial conviction. The court determined the Air Force was at fault for the shooting and the case was settled after the United States Government agreed to pay the victims $144.5 million.
Article 128b, UCMJ was primarily established to eliminate any confusion on which Article 128, UCMJ convictions constituted domestic violence and which ones did not. The change helps ensure domestic violence convictions are properly and accurately reported in the central database to prevent this type of tragedy in the future.
Now, law enforcement officials do not have to decipher whether an Article 128, UCMJ conviction is for assault that does not require reporting or whether it is for a crime of domestic violence, which does require reporting. Any conviction of Article 128b, UCMJ must be reported as a crime of domestic violence and anyone convicted at a special court-martial or general court-martial of Article 128b, UCMJ is legally barred from possessing a firearm.
What is illegal under Article 128b, UCMJ, Domestic Violence?
The actual text of Article 128b, UCMJ is a little confusing, as it references multiple other provisions in explaining what is illegal under the law. And the text of the law can also be a bit hard to find. The 2019 version of the Manual for Courts-Martial (MCM) does not have Article 128b with the other punitive articles. Instead, the text of Article 128b is in an appendix in the Manual for Courts-Martial.
Article 128b, UCMJ, for domestic violence criminalizes the following:
- Committing a violent offense against a spouse, an intimate partner, or an immediate family member,
- Committing any other crime under the UCMJ against a person or property with the intent to threaten or intimidate a spouse, an intimate partner, or an immediate family member;
- Violating a protective order with the intent to threaten or intimidate a spouse, an intimate partner, or an immediately family member;
- Violating a protective order with the intent to commit a violent offense against a spouse, an intimate partner, or an immediately family member of the accused;
- Strangling or suffocating a spouse, intimate partner, or an immediate family member of the accused.
For purposes of Article 128b, the definition of a “violent offense” is an offense that has an element that includes the use, attempted use, or threatened use of physical force against the person or property of another. “Spouse” is defined as one’s husband or wife by lawful marriage.
“Intimate partner” is much broader. An intimate partner is
(a) a former spouse;
(b) a person with whom one shares a child in common;
(c) a person with whom one cohabits or with whom one has cohabitated as a spouse; or
(d) a person with whom one has been in s social relationship of a romantic or intimate nature, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
The definitions and elements of Article 128b, UCMJ mean that an extremely broad range of actions taken against a broad range of people constitute domestic violence.
Additionally, violations of Article 128b, UMCJ tend to come with higher court-martial maximum punishments than the same offenses that are committed against someone who is not a spouse or intimate partner. The maximum confinement authorized at court-martial for committing a violent offense against a spouse or intimate partner is the maximum jail time for the underlying offense plus three additional years.
What this means is, for example, assault consummated by battery of someone who is not a spouse or intimate partner under Article 128, UCMJ carries six months of maximum confinement. That same assault consummated by battery committed against a spouse or intimate partner carries a maximum jail term of three years and six months.
Strangulation of a spouse or intimate partner under Article 128b, UCMJ has a maximum confinement term of eight years, whereas strangulation of someone who is not a spouse or intimate partner would likely constitute aggravated assault under Article 128, UCMJ and has a maximum confinement limit of five years, and grievous bodily harm must result from the assault.
In addition to confinement, a conviction of Article 128b, UCMJ can also result in a punitive discharge (bad conduct discharge or dishonorable discharge, depending on which specific provision of Article 128b, UCMJ is violated), reduction to E-1 and forfeiture of pay and allowances.
What are the possible consequences of being accused of domestic violence?
Punishment at a Court-Martial
If a military member is found guilty at a court-martial for domestic violence he/she could be punished with reduction to E-1, forfeiture of pay, years in jail, and a bad conduct or dishonorable discharge. Also, the Lautenberg Amendment would apply to any conviction for domestic violence at a special court-martial or general court-martial, regardless of the punishment imposed by the court.
Inability to Possess a Firearm as a Result of a Court-Martial Conviction
This means a military member who is convicted of domestic violence either at a court-martial or in a civilian court is not legally allowed to possess a firearm in any capacity. This disqualification from possessing a firearm is permanent. Military members who are convicted of a crime of domestic violence cannot attend firearms training and cannot be issued a firearm. Obviously, being ineligible to handle a firearm can negatively impact or even end a servicemember’s military career.
Administrative Separation or Discharge for Domestic Violence
Military members accused of domestic violence also face significant, career-ending consequences even if their case never sees the inside of a courtroom. An accusation of domestic violence can result in involuntary separation or administrative separation from all the military services. Every military service has some provision to facilitate involuntary discharge of service members thought to have committed domestic violence even if the military member has not been criminally charged or taken to court-martial.
In the Navy and Marine Corps, an accusation of domestic violence triggers mandatory discharge processing of any Sailor or Marine. For members of the Navy, MILPERSMAN 1910-233 mandates separation processing where the CO deems there is reliable evidence that a member committed “violent misconduct”. For Marines, the MARCORSEPMAN, MCO 1900.16 requires mandatory ADSEP processing for any Marine “determined to have committed an offense of child abuse or domestic, intimate partner, or immediate family member abuse. . .”.
While the discharge regulations for the Air Force, Space Force and Army do not require mandatory discharge processing for accusations of domestic violence, Airman, Soldiers, and Guardians accused of domestic violence can be discharged for commission of a serious offense.
DAFI 32-3211 contains the Air Force and Space Force’s policy dictating that members can be discharged for domestic violence via the commission of a serious offense provision. Additionally, in January 2023, SECAF directed a 90-day cross functional review to assess domestic violence in the Department of the Air Force, stating: “Domestic violence has no place in our Air and Space Forces-it breaks the bonds of our service family, destroys individuals, families, and our communities, and is illegal.” The expressed attitude of Air Force and Space Force leadership is that those who commit domestic violence have no place in their ranks.
Enlisted Soldiers accused of domestic violence face discharge for commission of a serious offense under AR 635-200. If a Soldier is discharged for domestic violence or dependent abuse, the commander is required to include that information in the separation action.
Army Officers can be involuntary separated for an “act of child/spouse maltreatment or abuse and/or other acts of Family violence.”
Military Consequences for a Civilian Domestic Violence Case
A military member can be subject to discharge for domestic violence even if the case is handled entirely in the civilian law enforcement or legal system. Every branch allows a member to be discharged for a civilian conviction. The definition of “civilian conviction” is not limited to being found guilty after a civilian trial. The definition of a “civil conviction” for discharge purposes is much broader and includes things like deferred prosecution, or an order to dismiss charges after the accused completes probation. This means a military member could still face discharge for domestic violence accusations that are handled by the civilian system even if the member does not face trial or plead guilty in the civilian court.
Family Advocacy Program and Domestic Violence
Service members accused of domestic violence or intimate partner violence are typically referred to the Family Advocacy Program. If FAP refers a member to a rehabilitation, educational, or counseling program to address allegations of domestic violence and the service member fails to complete the program or is involuntarily disenrolled, the member can be involuntarily discharged from the military.
Members accused of domestic violence should keep in mind there are limits to confidentiality with FAP. Any statements made to FAP personnel could be used against them for adverse actions or potentially even at court-martial. If you are called into FAP as a result of a domestic violence allegation, reach out for a consultation to discuss your rights and options.
Reenlisting After a Domestic Violence Accusation
Furthermore, even if a service member accused of domestic or intimate partner violence is not taken to court-martial or involuntarily discharged, he/she can be barred from re-enlisting due to an accusation of domestic violence. An allegation of domestic violence can also mean active-duty members are ineligible to join the reserve forces when they leave active duty, or use other programs like Palace Chase.
Military Protective Order for Domestic Violence
From a more personal standpoint, an allegation of domestic violence or intimate partner violence typically results in the issuance of a Military Protective Order (MPO) or a no contact order. Usually, commanders will use their authority to issue either an MPO or no contact order prohibiting contact between the service member and the spouse or intimate partner making the allegations.
Some commands even have their own policies that mandate a set period of separation when allegations of domestic violence are made. For example, the servicemember and their spouse could be separated for at least 72 hours after a reported incident of domestic violence. Commanders have the authority to keep the MPO or no contact order in place for as long as the commander deems it appropriate, and can set the parameters of the order.
The military member does not have the right to a hearing or opportunity to rebut an MPO or no contact order before it is issued. While the term MPO and no contact order are often used interchangeably, they are different. An MPO is more formal, must be in writing on the DD Form 2873, and are filed in official law enforcement databases. A no contact order tends to be less formal, can be issued verbally or in writing, and are not filed with law enforcement.
Typically, whether the order is an MPO or a no contact order, the order will prohibit any contact or communication, either directly or through a third-party, between the accused member and their spouse or other victims of the alleged offenses. In practice, this means that a military member could be forced to move out of their house if they share a home with the alleged victim, be prohibited from talking to or seeing their spouse, and have limited contact with their children for an indefinite period of time.
Contact an attorney right away if you are accused of domestic violence
There are numerous collateral and career-ending consequences that stem from an allegation of domestic violence, even when a case never goes to trial. In addition to legal and career implications, domestic violence accusations can impact personal aspects of a military member’s life such as where he/she can live, the ability to spend time with their families, and private firearm ownership.
Ensure that you have lawyers with the experience, knowledge, and dedication needed to handle all aspects of your case, and call KMD for a free consultation.
