Part IV · Punitive Articles
Article 128. Assault · MCM ¶ 77
2024 Manual for Courts-Martial, United States
See all changes(a) Text of statute.
(a) ASSAULT.—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 and shall be punished as a court-martial may direct.
(b) AGGRAVATED ASSAULT.—Any person subject to this chapter—
(1) who, with the intent to do bodily harm, offers to do bodily harm with a dangerous weapon;
(2) who, in committing an assault, inflicts substantial bodily harm or grievous bodily harm on another person; or
(3) who commits an assault by strangulation or suffocation; is guilty of aggravated assault and shall be punished as a court-martial may direct.
(c) ASSAULT WITH INTENT TO COMMIT SPECIFIED OFFENSES.—
(1) IN GENERAL.—Any person subject to this chapter who commits assault with intent to commit an offense specified in paragraph (2) shall be punished as a court-martial may direct.
(2) OFFENSES SPECIFIED.—The offenses referred to in paragraph (1) are murder, voluntary manslaughter, rape, sexual assault, rape of a child, sexual assault of a child, robbery, arson, burglary, and kidnapping.
(b) Elements.
(1) Simple assault.
(a) That the accused attempted to do or offered to do bodily harm to a certain person;
(b) That the attempt or offer was done unlawfully; and
(c) That the attempt or offer was done with force or violence.
(2) Assault consummated by a battery.
(a) That the accused did bodily harm to a certain person;
(b) That the bodily harm was done unlawfully; and
(c) That the bodily harm was done with force or violence.
(3) Assaults permitting increased punishment based on status of victim.
(a) Assault upon a commissioned, warrant, noncommissioned, or petty officer.
(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;
(ii) That the attempt, offer, or bodily harm was done unlawfully;
(iii) That the attempt, offer, or bodily harm was done with force or violence;
(iv) That the person was a commissioned, warrant, noncommissioned, or petty officer; and
(v) That the accused then knew that the person was a commissioned, warrant, noncommissioned, or petty officer.
(b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties.
(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;
(ii) That the attempt, offer, or bodily harm was done unlawfully;
(iii) That the attempt, offer, or bodily harm was done with force or violence;
(iv) That the person was a sentinel or lookout in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties; and
(v) That the accused then knew that the person was a sentinel or lookout in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties.
(c) Assault consummated by a battery upon a child under 16 years.
(i) That the accused did bodily harm to a certain person;
(ii) That the bodily harm was done unlawfully;
(iii) That the bodily harm was done with force or violence; and
(iv) That the person was then a child under the age of 16 years.
(4) Aggravated assault.
(a) Assault with a dangerous weapon.
(i) That the accused offered to do bodily harm to a certain person;
(ii) The offer was made with the intent to do bodily harm; and
(iii) That the accused did so with a dangerous weapon.
Practice Note
[Note: Add any of the following elements as applicable:]
(iv) That the dangerous weapon was a loaded firearm.
(v) That the person was a child under the age of 16 years.
(b) Assault in which substantial bodily harm is inflicted.
(i) That the accused assaulted a certain person; and
(ii) That substantial bodily harm was thereby inflicted upon such person.
Practice Note
[Note: Add any of the following elements as applicable:]
(iii) That the injury was inflicted with a loaded firearm.
(iv) That the person was a child under the age of 16 years.
(c) Assault in which grievous bodily harm is inflicted.
(i) That the accused assaulted a certain person; and
(ii) That grievous bodily harm was thereby inflicted upon such person.
Practice Note
[Note: Add any of the following elements as applicable:]
(iii) That the injury was inflicted with a loaded firearm.
(iv) That the person was a child under the age of 16 years.
(d) Aggravated Assault by strangulation or suffocation.
(i) That the accused assaulted a certain person;
(ii) That the accused did so by strangulation or suffocation; and;
(iii) That the strangulation or suffocation was done with unlawful force or violence;
Practice Note
[Note: Add the following as applicable]
(iv) That the person was a child under the age of 16 years.
(5) Assault with intent to commit specified offenses.
(a) That the accused assaulted a certain person; and
(b) That the accused, at the time of the assault, intended to: kill (as required for murder or voluntary manslaughter), or commit rape, rape of a child, sexual assault, sexual assault of a child, robbery, arson, burglary, or kidnapping.
(c) Explanation.
(1) Definitions of bodily harm.
(a) “Bodily harm” means an offensive touching of another, however slight.
(b) “Substantial bodily harm” means a bodily injury that involves:
(i) a temporary but substantial disfigurement, or
(ii) a temporary but substantial loss or impairment of function of any bodily member, organ, or mental faculty.
(c) “Grievous bodily harm” means a bodily injury that involves:
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
(2) Simple assault.
(a) Definition of assault. An assault is an unlawful attempt or offer, made with force or violence, to do bodily harm to another, whether or not the attempt or offer is consummated. It must be done without legal justification or excuse and without the lawful consent of the person affected.
(b) Difference between attempt and offer type assaults.
(i) Attempt-type assault. An attempt-type assault requires a specific intent to inflict bodily harm, and an overt act—that is, an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. An attempt-type assault may be committed even though the victim had no knowledge of the incident at the time.
(ii) Offer-type assault. An offer-type assault is 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. Specific intent to inflict bodily harm is not required.
(iii) Examples.
(A) If Doe swings a fist at Roe’s head intending to hit Roe but misses, Doe has committed an attempt-type assault, whether or not Roe is aware of the attempt.
(B) If Doe swings a fist in the direction of Roe’s head either intentionally or as a result of culpable negligence, and Roe sees the blow coming and is thereby put in apprehension of being struck, Doe has committed an offer-type assault whether or not Doe intended to hit Roe.
(C) If Doe swings at Roe’s head, intending to hit it, and Roe sees the blow coming and is thereby put in apprehension of being struck, Doe has committed both on offer-and an attempt-type assault.
(D) If Doe swings at Roe’s head simply to frighten Roe, not intending to hit Roe, and Roe does not see the blow and is not placed in fear, then no assault of any type has been committed.
(c) Situations not amounting to assault.
(i) Mere preparation. Preparation not amounting to an overt act, such as picking up a stone without any attempt or offer to throw it, does not constitute an assault.
(ii) Threatening words. The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, since the combination constitutes a demonstration of violence.
(iii) Circumstances negating intent to harm. If the circumstances known to the person menaced clearly negate an intent to do bodily harm, there is no assault. Thus, if a person accompanies an apparent attempt to strike another by an unequivocal announcement in some form of an intention not to strike, there is no assault. For example, if Doe raises a stick and shakes it at Roe within striking distance saying, “If you weren’t an old man, I would knock you down,” Doe has committed no assault. However, an offer to inflict bodily injury upon another instantly if that person does not comply with a demand that the assailant has no lawful right to make is an assault. Thus, if Doe points a pistol at Roe and says, “If you don’t hand over your watch, I will shoot you,” Doe has committed an assault upon Roe. See also paragraph 67 (Robbery) of this Part.
(d) Situations not constituting defenses to assault.
(i) Assault attempt fails. It is not a defense to a charge of assault that for some reason unknown to the assailant, an assault attempt was bound to fail. Thus, if a person loads a rifle with what is believed to be a good cartridge and, pointing it at another, pulls the trigger, that person may be guilty of assault although the cartridge was defective and did not fire. Likewise, if a person in a house shoots through the roof at a place where a policeman is believed to be, that person may be guilty of assault even though the policeman is at another place on the roof.
(ii) Retreating victim. An assault is complete if there is a demonstration of violence and an apparent ability to inflict bodily injury causing the person at whom it was directed to reasonably apprehend that unless the person retreats bodily harm will be inflicted. This is true even though the victim retreated and was never within actual striking distance of the assailant. There must, however, be an apparent present ability to inflict the injury. Thus, to aim a pistol at a person at such a distance that it clearly could not injure would not be an assault.
(3) Battery.
(a) In general. A battery is an assault in which the attempt or offer to do bodily harm is consummated by the infliction of that harm.
(b) Application of force. The force applied in a battery may have been directly or indirectly applied. Thus, a battery can be committed by inflicting bodily injury on a person through striking the horse on which the person is mounted causing the horse to throw the person, as well as by striking the person directly.
(c) Examples of battery. It may be a battery to spit on another, push a third person against another, set a dog at another that bites the person, cut another’s clothes while the person is wearing them though without touching or intending to touch the person, shoot a person, cause a person to take poison, or drive an automobile into a person. A person who, although excused in using force, uses more force than is required, commits a battery. Throwing an object into a crowd may be a battery on anyone whom the object hits.
(d) Situations not constituting battery. If bodily harm is inflicted unintentionally and without culpable negligence, there is no battery. It is also not a battery to touch another to attract the other’s attention or to prevent injury.
(4) Assaults permitting increased punishment based on status of victims.
(a) Assault upon a commissioned, warrant, noncommissioned, or petty officer. The maximum punishment is increased when assault is committed upon a commissioned officer of the armed forces of the United States, or of a friendly foreign power, or upon a warrant, noncommissioned, or petty officer of the armed forces of the United States. Knowledge of the status of the victim is an essential element of the offense and may be proved by circumstantial evidence. It is not necessary that the victim be superior in rank or command to the accused, that the victim be in the same armed force, or that the victim be in the execution of office at the time of the assault.
(b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties. The maximum punishment is increased when assault is committed upon a sentinel or lookout in the execution of duty or upon a person who was then performing security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties. Knowledge of the status of the victim is an essential element of this offense and may be proved by circumstantial evidence. See subparagraph 22.c.(1)(d) for the definition of sentinel or lookout.
(c) Assault consummated by a battery upon a child under 16 years of age. The maximum punishment is increased when assault consummated by a battery is committed upon a child under 16 years of age. Knowledge that the person assaulted was under 16 years of age is not an element of this offense.
(5) Aggravated assault.
(a) Assault with a dangerous weapon.
(i) In general. It must be proved that the accused specifically intended to do bodily harm. Culpable negligence will not suffice.
(ii) Proving intent. Specific intent may be proved by circumstantial evidence. When bodily harm has been inflicted by means of intentionally using force in a manner capable of achieving that result, it may be inferred that bodily harm was intended.
(iii) Dangerous weapon. A weapon is dangerous when used in a manner capable of inflicting death or grievous bodily harm. What constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to kill or inflict grievous bodily harm. Thus, a bottle, beer glass, a rock, a bunk adaptor, a piece of pipe, a piece of wood, boiling water, drugs, or a rifle butt may be used in a manner capable of inflicting death or grievous bodily harm. Furthermore, under the appropriate circumstances, fists, teeth, feet, elbows, etc. may be considered a dangerous weapon when employed in a manner capable of inflicting death or grievous bodily harm.
(iv) Injury not required. It is not necessary that bodily harm be actually inflicted to prove assault with a dangerous weapon.
(v) When committed upon a child under 16 years of age. The maximum punishment is increased when assault with a dangerous weapon is committed upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense.
(b) Assault in which substantial or grievous bodily harm is inflicted.
(i) In general. Assault in which substantial or grievous bodily harm is inflicted is a general intent crime which requires that the accused assaulted another person and that the assault resulted in substantial or grievous bodily harm. The offense does not require specific intent to cause substantial or grievous bodily harm. The focus of the offense is the degree of bodily harm resulting from an assault. This contrasts with the offense of assault with a dangerous weapon, where the focus of the offense is the accused’s intent to do bodily harm and the use of a dangerous weapon, regardless of whether any bodily harm results.
(ii) When committed on a child under 16 years of age. The maximum punishment is increased when assault involving infliction of substantial or grievous bodily harm is inflicted upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense.
(c) Aggravated Assault by strangulation or suffocation.
(i) In general. Assault by strangulation or suffocation is an assault committed intentionally, knowingly, or recklessly, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.
(ii) Assault. See paragraph 77.c.(2)(a).
(iii) Strangulation. Intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the throat or neck, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.
(iv) Suffocation. Intentionally, knowingly, or recklessly impeding the normal breathing of a person by covering the mouth of the person, the nose of the person, or both, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.
(v) When committed upon a child under 16 years of age. The maximum punishment is increased when aggravated assault by strangulation or suffocation is inflicted upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense.
(6) Assault with intent to commit specified offenses.
(a) In general. An assault with intent to commit any of the offenses referenced below is not necessarily the equivalent of an attempt to commit the intended offense, for an assault can be committed with intent to commit an offense without achieving that proximity to consummation of an intended offense that is essential to an attempt. See paragraph 4 of this Part.
(b) Assault with intent to murder. Assault with intent to commit murder is assault with the specific intent to kill. Actual infliction of injury is not necessary. To constitute an assault with intent to murder with a firearm, it is not necessary that the weapon be discharged. When the intent to kill exists, the fact that for some unknown reason the actual consummation of the murder by the means employed is impossible is not a defense if the means are apparently adapted to the end in view. The intent to kill need not be directed against the person assaulted if the assault is committed with intent to kill some person. For example, if a person, intending to kill Jones, shoots Smith, mistaking Smith for Jones, that person is guilty of assaulting Smith with intent to murder. If a person fires into a group with intent to kill anyone in the group, that person is guilty of an assault with intent to murder each member of the group.
(c) Assault with intent to commit voluntary manslaughter. Assault with intent to commit voluntary manslaughter is an assault committed with a specific intent to kill under such circumstances that, if death resulted therefrom, the offense of voluntary manslaughter would have been committed. There can be no assault with intent to commit involuntary manslaughter, for it is not a crime capable of being intentionally committed.
(d) Assault with intent to commit rape, rape of a child, sexual assault, and sexual assault of a child. In assault with intent to commit any rape or sexual assault, the accused must have intended to complete the offense. Any lesser intent will not suffice. No actual touching is necessary. Once an assault with intent to commit rape is made, it is no defense that the accused voluntarily desisted.
(e) Assault with intent to rob. For assault with intent to rob, the fact that the accused intended to take money and that the person the accused intended to rob had none is not a defense.
(d) Maximum punishment.
(1) Simple assault.
(a) Generally. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months.
(b) When committed with a firearm or other dangerous weapon. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(c) When committed with a loaded firearm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 4 years.
(2) Battery.
(a) Assault consummated by a battery. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
(b) Assault consummated by a battery upon a child under 16 years. See paragraph 77.d.(3)(e).
(3) Assaults permitting increased punishments based upon status of victim.
(a) Assault upon a commissioned officer of the armed forces of the United States or of a friendly foreign power, not in the execution of office. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(b) Assault upon a warrant officer, not in the execution of office. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.
(c) Assault upon a noncommissioned or petty officer, not in the execution of office. Bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
(d) Assault upon a sentinel or lookout in the execution of duty, or upon any person who, in the execution of office, is performing security policy, military police, shore patrol, master at arms, or other military or civilian law enforcement duties. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(e) Assault consummated by a battery upon a child under 16 years. Dishonorably discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(4) Aggravated assault.
(a) Aggravated assault with a dangerous weapon.
(i) When committed with a loaded firearm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years.
(ii) When committed upon a child under the age of 16 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(iii) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(b) Aggravated assault in which substantial bodily harm is inflicted.
(i) When the injury is inflicted with a loaded firearm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years.
(ii) When the injury is inflicted upon a child under the age of 16 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 6 years.
(iii) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(c) Aggravated assault in which grievous bodily harm is inflicted.
(i) When the injury is inflicted with loaded firearm. Dishonorable discharge, forfeiture of all pay and allowance, and confinement for 10 years.
(ii) When the injury is inflicted upon a child under the age of 16 years. Dishonorable, forfeiture of all pay and allowances, and confinement for 8 years.
(iii) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(d) Aggravated Assault by strangulation or suffocation.
(i) Aggravated assault by strangulation or suffocation when committed upon a child under the age of 16 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years.
(ii) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(5) Assault with intent to commit specified offenses.
(a) Assault with intent to commit murder, rape, or rape of a child. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
(b) Assault with intent to commit voluntary manslaughter, robbery, arson, burglary, kidnapping, sexual assault, or sexual assault of a child. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
(e) Sample specifications.
(1) Simple assault. In that __________ (personal jurisdiction data), did, (at/on board—location), (subject-matter jurisdiction data, if required), on or about _____ 20 __, assault __________ by (striking at (him) (her) with a __________) (__________).
(2) Assault consummated by a battery. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, unlawfully (strike) (__________) __________ (on) (in) the __________ with __________.
(3) Assault upon a commissioned officer. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, assault _____, who then was and was then known by the accused to be a commissioned officer of (_____, a friendly foreign power) [the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard) (______)] by _______________.
(4) Assault upon a warrant, noncommissioned, or petty officer. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, assault __________, who then was and was then known by the accused to be a (warrant) (noncommissioned) (petty) officer of the [the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard) (______)] by _______________.
(5) Assault upon a sentinel or lookout. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, assault __________, who then was and was then known by the accused to be a (sentinel) (lookout) in the execution of (his) (her) duty, ((in) (on) the __________) by __________.
(6) Assault upon a person in the execution of law enforcement duties. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, assault __________, who then was and was then known by the accused to be a person then having and in the execution of (Air Force security police) (military police) (shore patrol) (master at arms) ((military) (civilian) law enforcement)) duties, by __________.
(7) Assault consummated by a battery upon a child under 16 years. In that __________ (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, unlawfully (strike) (_______) _________ (a child under the age of 16 years) (in) (on) the _____ with ____________.
(8) Assault, aggravated―with a dangerous weapon. In that __________ (personal jurisdiction data), did, (at/on board-location) (subject matter jurisdiction data, if required), on or about _____ 20 __, with the intent to inflict bodily harm, commit an assault upon __________ (a child under the age of 16 years) by (shooting) (pointing) (striking) (cutting) (_____) (at (him) (her)) with a dangerous weapon, to wit: a (loaded firearm) (pickax) (bayonet) (club) (_________).
(9) Assault, aggravated―inflicting substantial bodily harm. In that __________ (personal jurisdiction data), did, (at/on board-location) (subject matter jurisdiction data, if required), on or about _____ 20 __, commit an assault upon _____ (a child under the age of 16 years) by (shooting) (striking) (cutting) (___) (him) (her) (on) the _____ with a (loaded firearm) (club) (rock) (brick) (________) and did thereby inflict substantial bodily harm upon (him) (her), to wit: (severe bruising of the face) (head concussion) (temporary blindness) (__________).
(10) Assault, aggravated―inflicting grievous bodily harm. In that __________ (personal jurisdiction data), did, (at/on board-location) (subject matter jurisdiction data, if required), on or about _____ 20 __, commit an assault upon _____ (a child under the age of 16 years) by (shooting) (striking) (cutting) (___) (him) (her) (on) the _____ with a (loaded firearm) (club) (rock) (brick) (_________) and did thereby inflict grievous bodily harm upon (him) (her), to wit: a (broken leg) (deep cut) (fractured skull) (__________).
(11) Assault, aggravated―by strangulation or suffocation. In that __________ (personal jurisdiction data), did, (at/on board-location) (subject matter jurisdiction data, if required), on or about _____ 20 __, commit an assault upon __________ (a child under the age of 16 years) by unlawfully (strangling) (suffocating) (him) (her) (with/by __________).
(12) Assault with intent to commit specified offenses. In that __________ (personal jurisdiction data), did, (at/on board-location) (subject matter jurisdiction data, if required), on or about _____ 20 __, with intent to commit (murder) (voluntary manslaughter) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (robbery) (arson) (burglary) (kidnapping), assault____________ by (striking at (him) (her) with a __________) (__________).
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.
NOTE 1. WARNING: Careful attention must be paid to the offense, referral, and relevant Executive Order (EO) dates to determine the applicable maximum punishment in each case. Effective 28 July 2023, the President signed EO 14103 which (1) added “other dangerous weapon” and “loaded firearm” as sentence escalators and (2) modified the maximum punishment when this offense is committed with an “unloaded firearm.” The below-listed maximum punishments are copied directly from the 2024 MCM. Under certain circumstances (e.g., the offense occurred before 28 July 2023), the below-listed maximum punishments may NOT be applicable and independent research, including the review of prior MCMs and EOs, may be necessary to calculate the correct maximum punishment. Also, effective 26 January 2022, the President signed EO 14062 moving offenses involving an assault on a spouse, intimate partner, or immediate family member to Article 128b.
NOTE 2. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
(1) Generally: 2/3 x 3 months, 3 months, E1 (Category 1)
(2) When committed with a firearm or other dangerous weapon: DD, TF, 2 years,E-1
(3) When committed with a loaded firearm: DD, TF, 4 years, and E1
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board--location), on or about __________, assault __________ by (striking at him/her with a __________) (__________).
Elements
(1) That (state the time and place alleged), the accused (attempted) (offered) to do bodily harm to (state the name of the alleged victim) by (state the manner alleged);
(2) That the (attempt) (offer) was done unlawfully; (and)
(3) That the (attempt) (offer) was done with force or violence; [and]
NOTE 3. Firearm. If the specification alleges an assault with a firearm or other dangerous weapon, add the following element:
(4) That the (attempt) (offer) was done with a(n) ((unloaded) (loaded) firearm) (dangerous weapon).
Definitions & other instructions
NOTE 4. Assault by attempt. If the specification alleges an attempt to do bodily harm, give the following instruction:
An “assault” is an unlawful attempt, made with force or violence, to do bodily harm to another, whether or not the attempt is consummated. The accused must have committed an overt act with the specific intent to inflict bodily harm. An “overt act” is an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An attempt to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
NOTE 5. Assault by offer. If the specification alleges an offer to do bodily harm, give the following instruction:
An “assault” is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated. The accused must have made a demonstration of violence, either by an intentional or by a culpably negligent act or omission, which created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An offer to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
(The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, if the combination constitutes a demonstration of violence.)
NOTE 6. If a firearm or dangerous weapon is alleged, the below instruction may be appropriate.
(“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.)
(A weapon is a “dangerous weapon” when used in a manner capable of inflicting death or grievous bodily harm. What constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to kill or inflict grievous bodily harm.
"Grievous bodily harm" means a bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.)
Source: Instruction 3a-77-1 · view original on jagcnet.army.mil
NOTE. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
BCD, TF, 6 months, E-1. (Category 1)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, unlawfully (strike) (__________) __________ (on) (in) the __________ with __________.
Elements
(1) That (state the time and place alleged), the accused did bodily harm to (state the name of the alleged victim) by (state the manner alleged);
(2) That the bodily harm was done unlawfully; and
(3) That the bodily harm was done with force or violence.
Definitions & other instructions
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
“Bodily harm” means an offensive touching of another, however slight.
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
Source: Instruction 3a-77-2 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
DD, TF, 3 years, E-1. (Category 2)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, assault __________, who then was and was then known by the accused to be a commissioned officer of (__________, a friendly foreign power) [the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard) (_______)] by __________.
Elements
(1) That (state the time and place alleged) the accused (attempted to do) (offered to do) (did) bodily harm to (state the name and rank of the alleged victim) by (state the alleged manner of the assault or battery);
(2) That the (attempt) (offer) (bodily harm) was done unlawfully;
(3) That the (attempt) (offer) (bodily harm) was done with force or violence;
(4) That (state the name and rank of the alleged victim) was a commissioned officer of the (the United States Army) (__________); and
(5) That the accused then knew that (state the name and rank of the alleged victim) was a commissioned officer of the (the United States Army) (__________).
Definitions & other instructions
NOTE 2. Assault by attempt. If the specification alleges an attempt to do bodily harm, give the following instruction:
An “assault” is an unlawful attempt, made with force or violence, to do bodily harm to another, whether or not the attempt is consummated. The accused must have committed an overt act with the specific intent to inflict bodily harm. An “overt act” is an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An attempt to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
NOTE 3. Assault by offer. If the specification alleges an offer to do bodily harm, give the following instruction:
An “assault” is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated. The accused must have made a demonstration of violence, either by an intentional or by a culpably negligent act or omission, which created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An offer to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
(The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, if the combination constitutes a demonstration of violence.)
NOTE 4. Assault by battery. If the specification alleges an assault by battery, give the following instruction:
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
“Bodily harm” means an offensive touching of another, however slight.
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
NOTE 5. Superior status/execution of office. The following instructions may be provided, if necessary.
(It is not necessary that the victim be superior in rank or command to the accused, or in the same armed force as the accused.)
(It is not necessary that the victim be in the execution of office at the time of assault.)
NOTE 6. Divestiture or abandonment defense. When the issue arises whether the victim’s conduct divested the victim of his or her status as a commissioned officer, the following instruction should be given.
The evidence has raised an issue as to whether (state the name and rank of the alleged victim) conducted himself/herself prior to the charged assault in a manner that took away his/her status as a commissioned officer. An officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for a commissioned officer under similar circumstances is considered to have abandoned his/her status as a commissioned officer. In determining this issue, you must consider all the relevant facts and circumstances (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
You may find the accused guilty of the offense of assault upon a commissioned officer only if you are convinced beyond a reasonable doubt that __________, by his/her (conduct) (and) (language) did not abandon his/her status as a commissioned officer.
Source: Instruction 3a-77-3 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
(1) Upon a warrant officer: DD, TF, 18 months, E-1. (Category 2)
(2) Upon a noncommissioned or petty officer: BCD, TF, 6 months, E-1. (Category 1)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, assault __________, who then was and was then known by the accused to be a (warrant) (noncommissioned) (petty) officer of the [United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard) (_______)], by __________.
Elements
(1) That (state the time and place alleged) the accused (attempted to do) (offered to do) (did) bodily harm to (state the name and rank of the alleged victim) by (state the alleged manner of the assault or battery);
(2) That the (attempt) (offer) (bodily harm) was done unlawfully;
(3) That the (attempt) (offer) (bodily harm) was done with force or violence;
(4) That (state the name and rank of the alleged victim) was a (warrant) (noncommissioned) (petty) officer of the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard); and
(5) That the accused then knew that (state the name and rank of the alleged victim) was a (warrant) (noncommissioned) (petty) officer of the United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard).
Definitions & other instructions
NOTE 2. Assault by attempt. If the specification alleges an attempt to do bodily harm, give the following instruction:
An “assault” is an unlawful attempt, made with force or violence, to do bodily harm to another, whether or not the attempt is consummated. The accused must have committed an overt act with the specific intent to inflict bodily harm. An “overt act” is an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An attempt to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
NOTE 3. Assault by offer. If the specification alleges an offer to do bodily harm, give the following instruction:
An “assault” is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated. The accused must have made a demonstration of violence, either by an intentional or by a culpably negligent act or omission, which created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An offer to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
(The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, if the combination constitutes a demonstration of violence.)
NOTE 4. Assault by battery. If the specification alleges an assault by battery, give the following instruction:
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
“Bodily harm” means an offensive touching of another, however slight.
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
NOTE 5. Superior status/execution of office. The following instructions may be provided, if necessary.
(It is not necessary that the victim be superior in rank or command to the accused, or in the same armed force as the accused.)
(It is not necessary that the victim be in the execution of office at the time of assault.)
NOTE 6. Divestiture or abandonment defense. When the issue arises whether the victim’s conduct was in a manner that divested the victim of his or her status as a warrant, noncommissioned, or petty officer, the following instruction should be given:
The evidence has raised an issue as to whether (state the name and rank of the alleged victim) conducted himself/herself prior to the charged assault in a manner that took away his/her status as a (warrant), (noncommissioned) (petty) officer. An officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for a (warrant) (noncommissioned) (petty) officer under similar circumstances is considered to have abandoned his/her status as a (warrant) (noncommissioned) (petty) officer. In determining this issue you must consider all the relevant facts and circumstances, (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
You may find the accused guilty of the offense of assault upon a (warrant) (noncommissioned) (petty) officer only if you are convinced beyond a reasonable doubt that (state the name and rank of the alleged victim), by his/her (conduct) (and) (language) did not abandon his/her status as a (warrant) (noncommissioned) (petty) officer.
Source: Instruction 3a-77-4 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
DD, TF, 3 years, E-1. (Category 2)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, assault __________, who then was and was then known by the accused to be a (sentinel) (lookout) in the execution of (his) (her) duty, ((in) (on) the __________) by __________.
Elements
(1) That (state the time and place alleged), the accused (attempted to do) (offered to do) (did) bodily harm to (state the name and rank of the alleged victim) by (state the manner alleged);
(2) That the (attempt) (offer) (bodily harm) was done unlawfully;
(3) That the (attempt) (offer) (bodily harm) was done with force or violence;
(4) That (state the name and rank of the alleged victim) was a (sentinel) (lookout) who was then in the execution of his/her duty; and
(5) That the accused knew that (state the name and rank of the alleged victim) was a (sentinel) (lookout) in the execution of his/her duty.
Definitions & other instructions
A (sentinel) (lookout) is a person whose duties include the requirement to maintain constant alertness, be vigilant, and remain awake, in order to observe for the possible approach of the enemy, or to guard persons, property, or a place, and to sound the alert, if necessary.
A (sentinel) (lookout) is “in the execution of his/her duty” when doing any act or service required or authorized to be done by statute, regulation, the order of a superior, military usage, or by custom of the service.
NOTE 2. Assault by attempt. If the specification alleges an attempt to do bodily harm, give the following instruction:
An “assault” is an unlawful attempt, made with force or violence, to do bodily harm to another, whether or not the attempt is consummated. The accused must have committed an overt act with the specific intent to inflict bodily harm. An “overt act” is an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An attempt to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
NOTE 3. Assault by offer. If the specification alleges an offer to do bodily harm, give the following instruction:
An “assault” is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated. The accused must have made a demonstration of violence, either by an intentional or by a culpably negligent act or omission, which created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An offer to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
(The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, if the combination constitutes a demonstration of violence.)
NOTE 4. Assault by battery. If the specification alleges an assault by battery, give the following instruction:
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
“Bodily harm” means an offensive touching of another, however slight.
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
NOTE 5. Divestiture of status. When the issue has arisen as to whether the lookout or sentinel has conducted himself or herself in a manner that has divested the sentinel or lookout of that status, acting in the execution of his or her duty, the following instruction should be given:
The evidence has raised an issue as to whether (state the name and rank of the alleged victim) conducted himself/herself prior to the charged assault in a manner that took away his/her status as a (sentinel) (lookout) acting in the execution of his/her duty. A (sentinel) (lookout) whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for the (sentinel’s) (lookout’s) rank and position under similar circumstances is considered to have abandoned that position. In determining this issue you must consider all the relevant facts and circumstances, (including but, not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
You may find the accused guilty of assault on a (sentinel) (lookout) in the execution of his/her duties only if you are satisfied beyond a reasonable doubt that (state the name and rank of the alleged victim), by his/her (conduct) (and) (language) did not abandon his/her status as a (sentinel) (lookout) acting in the execution of his/her duty.
Source: Instruction 3a-77-5 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
DD, TF, 3 years, E-1. (Category 2)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, assault __________, who then was and was then known by the accused to be a person then having and in the execution of (Air Force security police) (military police) (shore patrol) (master at arms) ((military) (civilian) law enforcement)) duties, by __________.
Elements
(1) That (state the time and place alleged), the accused (attempted to do) (offered to do) (did) bodily harm to (state the name and rank of the alleged victim) by (state the manner alleged);
(2) That the (attempt) (offer) (bodily harm) was done unlawfully;
(3) That the (attempt) (offer) (bodily harm) was done with force or violence;
(4) That (state the name and rank of the alleged victim) was a person who then had and was in the execution of (military police) (law enforcement) (__________) duties; and
(5) That the accused knew that (state the name and rank of the alleged victim) then had and was in the execution of such duties.
Definitions & other instructions
A person is “in the execution of (military police) (law enforcement) (_______) duties” when doing any law enforcement act or service required or authorized to be done by him/her by statute, regulation, the order of a superior, military usage, or by custom of the service.
NOTE 2. Assault by attempt. If the specification alleges an attempt to do bodily harm, give the following instruction:
An “assault” is an unlawful attempt, made with force or violence, to do bodily harm to another, whether or not the attempt is consummated. The accused must have committed an overt act with the specific intent to inflict bodily harm. An “overt act” is an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An attempt to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
NOTE 3. Assault by offer. If the specification alleges an offer to do bodily harm, give the following instruction:
An “assault” is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated. The accused must have made a demonstration of violence, either by an intentional or by a culpably negligent act or omission, which created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An offer to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
(The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, if the combination constitutes a demonstration of violence.)
NOTE 4. Assault by battery. If the specification alleges an assault by battery, give the following instruction:
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
“Bodily harm” means an offensive touching of another, however slight.
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
NOTE 5. Divestiture defense. If the issue has arisen whether the law enforcement person conducted himself or herself in a manner that divested him or her of the status of a person in the execution of law enforcement duties, the following instruction should be given:
The evidence has raised an issue as to whether (state the name and rank of the alleged victim) conducted himself/herself prior to the charged assault in a manner that took away his/her status as a person acting in the execution of (police) (law enforcement) duties.
A law enforcement person whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for that law enforcement officer’s position under similar circumstances is considered to have abandoned that rank and position. In determining this issue you must consider all the relevant facts and circumstances, including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).
You may find the accused guilty of assault on a law enforcement officer in the execution of his/her duties only if you are satisfied beyond a reasonable doubt that (state the name and rank of the alleged victim) by his/her (conduct) (and) (language) did not abandon his/her status as a law enforcement official acting in the execution of his/her duties.
Source: Instruction 3a-77-6 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
DD, TF, 2 years, E-1. (Category 2)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, unlawfully (strike) (__________) __________, (a child under the age of 16 years), (in) (on) the __________ with __________.
Elements
(1) That (state the time and place alleged), the accused did bodily harm to (state the name of the alleged victim) by (state the manner alleged);
(2) That the bodily harm was done unlawfully;
(3) That the bodily harm was done with force or violence; and
(4) That (state the name of the alleged victim) was then a child under the age of 16 years.
Definitions & other instructions
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
“Bodily harm” means an offensive touching of another, however slight.
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.)
NOTE 2. Accused’s knowledge of child’s age. When the alleged victim is a child under the age of 16 years, the following instruction may be appropriate.
Knowledge that the person assaulted was under the age of 16 years is not an element of the offense. Accordingly, if you are convinced beyond a reasonable doubt that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense(s), you are advised that the prosecution is not required to prove that the accused knew that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense(s), and it is not a defense to battery upon a child even if the accused reasonably believed that (state the name of the alleged victim) was at least 16 years old.
Source: Instruction 3a-77-7 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
(1) With a loaded firearm: DD, TF, 8 years, E-1. (Category 3)
(2) Committed upon a child under the age of 16 years: DD, TF, 5 years, E-1. (Category 3)
(3) Other cases: DD, TF, 3 years, E-1. (Category 2)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board location), on or about __________, with the intent to inflict bodily harm, commit an assault upon __________ (a child under the age of 16 years) by (shooting) (pointing) (striking) (cutting) (__________) (at (him) (her)) with a dangerous weapon, to wit: a (loaded firearm) (pickax) (bayonet) (club) (__________).
Elements
(1) That, (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by offering to do bodily harm to him/her;
(2) That the accused did so by (state the manner alleged) with a certain weapon, to wit: (state the weapon alleged).
(3) That the accused intended to do bodily harm; (and)
(4) That the weapon was a dangerous weapon; [and]
NOTE 2. Loaded firearm alleged. When a loaded firearm is alleged, add the following element.
[(5)] That the weapon was a loaded firearm; [and]
NOTE 3. Protected person alleged. When the alleged victim is a protected person, add the following element.
[(5) or (6)] That, at the time, (state the name of the alleged victim) was a child under the age of 16 years.
Definitions & other instructions
An “assault” is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated.
An “offer to do bodily harm” is an unlawful demonstration of violence, by an intentional act or omission, which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm. (The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, since the combination constitutes a demonstration of violence.)
“Bodily harm” means an offensive touching of another, however slight.
It is not necessary that bodily harm be actually inflicted. However, the accused must have intended to do bodily harm.
Intent to do bodily harm may be proved by circumstantial evidence. When bodily harm has been inflicted by means of intentionally using force in a manner capable of achieving that result, it may be inferred that the bodily harm was intended.
An offer to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
A weapon is a “dangerous weapon” when used in a manner capable of inflicting death or grievous bodily harm. What constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to kill or inflict grievous bodily harm.
“Grievous bodily harm” means a bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
NOTE 4. Loaded firearm alleged. If a loaded firearm is alleged, the below instruction may be appropriate.
“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive. (A fully functional revolver with an automatic rotating cylinder is a loaded weapon if there is a round of live ammunition in any chamber.) (A functional (clip) (magazine) fed weapon is a loaded weapon if there has been inserted into it a (clip) (magazine) containing a round of live ammunition, regardless of whether there is a round in the chamber.)
NOTE 5. Accused’s knowledge of child’s age. When the alleged victim is a child under the age of 16 years, provide the following instruction:
Knowledge that the person assaulted was under 16 years of age is not an element of this offense. [The accused’s belief that (state the name of the alleged victim) was (____ years old) (16 years or older) is not a defense to this offense.]
NOTE 6. Consent as a defense. Under certain circumstances, consent may be a defense to simple assault or assault consummated by a battery. See US v. Arab, 55 MJ 508 (ACCA 2001). Consent is not generally a defense to aggravated assault. See US v. Bygrave, 46 MJ 491 (CAAF 1997). However, even in aggravated assault cases, military judges must carefully examine the facts and law to determine whether consent is a possible defense. If the judge determines that consent is not a defense, the following instruction may be given, if necessary.
A victim may not lawfully consent to an assault with a dangerous weapon. Consent is not a defense to this offense.
Source: Instruction 3a-77-8 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
(1) With a loaded firearm: DD, TF, 8 years, E-1. (Category 3)
(2) Committed upon a child under the age of 16 years: DD, TF, 6 years, E-1. (Category 3)
(3) Other cases: DD, TF, 3 years, E-1. (Category 2)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit an assault upon __________ (a child under the age of 16 years) by (shooting) (striking) (cutting) (__________) (him) (her) (on) the __________ with a (loaded firearm) (club) (rock) (brick) (__________) and did thereby inflict substantial bodily harm upon (him) (her), to wit: (severe bruising of the face) (head concussion) (temporary blindness) (__________).
Elements
(1) That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by (state the manner alleged); (and)
(2) That substantial bodily harm was thereby inflicted upon (state the name of the alleged victim), to wit: (_______); [and]
NOTE 2. Loaded firearm alleged. When a loaded firearm is alleged, add the following element:
[(3)] That the injury was inflicted with a loaded firearm; [and]
NOTE 3. Protected person alleged. When the alleged victim is a protected person, add the following element.
[(3) or (4)] That, at the time, (state the name of the alleged victim) was a child under the age of 16 years.
Definitions & other instructions
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others.)
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
“Bodily harm” means an offensive touching of another, however slight.
“Substantial bodily harm” means a bodily injury that involves a temporary but substantial disfigurement, or a temporary but substantial loss or impairment of function of any bodily member, organ, or mental faculty.
NOTE 4. Loaded firearm alleged. If a loaded firearm is alleged, the below instruction may be appropriate.
“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive. (A fully functional revolver with an automatic rotating cylinder is a loaded weapon if there is a round of live ammunition in any chamber.) (A functional (clip) (magazine) fed weapon is a loaded weapon if there has been inserted into it a (clip) (magazine) containing a round of live ammunition, regardless of whether there is a round in the chamber.)
NOTE 5. Accused’s knowledge of child’s age. When the alleged victim is a child under the age of 16 years, provide the following instruction:
Knowledge that the person assaulted was under 16 years of age is not an element of this offense. [The accused’s belief that (state the name of the alleged victim) was (____ years old) (16 years or older) is not a defense to this offense.]
NOTE 6. Consent as a defense. Under certain circumstances, consent may be a defense to simple assault or assault consummated by a battery. See US v. Arab, 55 M.J. 508 (A. Ct. Crim. App. 2001). Consent is not generally a defense to aggravated assault. See US v. Bygrave, 46 M.J. 491 (CAAF 1997). However, even in aggravated assault cases, military judges must carefully examine the facts and law to determine whether consent is a possible defense. If the judge determines that consent is not a defense, the following instruction may be given, if necessary.
A victim may not lawfully consent to an assault in which substantial bodily harm is inflicted. Consent is not a defense to this offense.
Source: Instruction 3a-77-9 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
(1) With a loaded firearm: DD, TF, 10 years, E-1. (Category 3)
(2) Committed upon a child under the age of 16 years: DD, TF, 8 years, E-1. (Category 3)
(3) Other cases: DD, TF, 5 years, E-1. (Category 2)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit an assault upon __________ (a child under the age of 16 years) by (shooting) (striking) (cutting) (__________) (him) (her) (on) the __________ with a (loaded firearm) (club) (rock) (brick) (__________) and did thereby inflict grievous bodily harm upon (him) (her), to wit: a (broken leg) (deep cut) (fractured skull) (__________).
Elements
(1) That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by (state the manner alleged); (and)
(2) That grievous bodily harm was thereby inflicted upon (state the name of the alleged victim), to wit: (________); [and]
NOTE 2. Loaded firearm alleged. When a loaded firearm is alleged, add the following element:
[(3)] That the injury was inflicted with a loaded firearm; [and]
NOTE 3. Protected person alleged. When the alleged victim is a protected person, add the following element.
[(3) or (4)] That, at the time, (state the name of the alleged victim) was a child under the age of 16 years.
Definitions & other instructions
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others.)
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
“Bodily harm” means an offensive touching of another, however slight.
“Grievous bodily harm” means a bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
NOTE 4. Loaded firearm alleged. If a loaded firearm is alleged, the below instruction may be appropriate.
“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive. (A fully functional revolver with an automatic rotating cylinder is a loaded weapon if there is a round of live ammunition in any chamber.) (A functional (clip) (magazine) fed weapon is a loaded weapon if there has been inserted into it a (clip) (magazine) containing a round of live ammunition, regardless of whether there is a round in the chamber.)
NOTE 5. Accused’s knowledge of child’s age. When the alleged victim is a child under the age of 16 years, provide the following instruction:
Knowledge that the person assaulted was under 16 years of age is not an element of this offense. [The accused’s belief that (state the name of the alleged victim) was (____ years old) (16 years or older) is not a defense to this offense.]
NOTE 6. Consent as a defense. Under certain circumstances, consent may be a defense to simple assault or assault consummated by a battery. See US v. Arab, 55 M.J. 508 (A. Ct. Crim. App. 2001). Consent is not generally a defense to aggravated assault. See US v. Bygrave, 46 M.J. 491 (CAAF 1997). However, even in aggravated assault cases, military judges must carefully examine the facts and law to determine whether consent is a possible defense. If the judge determines that consent is not a defense, the following instruction may be given, if necessary.
A victim may not lawfully consent to an assault in which grievous bodily harm is inflicted. Consent is not a defense to this offense.
Source: Instruction 3a-77-10 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment
(1) Aggravated assault by strangulation or suffocation when committed upon a child under the age of 16 years: DD, TF, 8 years, E-1. (Category 3)
(2) Other cases: DD, TF, 5 years, E-1. (Category 2)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board-location), on or about __________, commit an assault upon __________ (a child under the age of 16 years) by unlawfully (strangling) (suffocating) (him) (her) (with/by __________).
Elements
(1) That (state the time and place alleged) the accused assaulted (state the name of the alleged victim);
(2) That the accused did so by (strangulation) (suffocation); [and]
(3) That the (strangulation) (suffocation) was done with unlawful force or violence. [and]
NOTE 2. When the alleged victim is a child under the age of 16 years, add the following element.
[(4)] That, at the time, (state the name of the alleged victim) was a child under the age of 16 years.
Definitions & other instructions
An assault by (strangulation) (suffocation) is an assault committed intentionally, knowingly, or recklessly, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
“Bodily harm” means an offensive touching of another, however slight.
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(“Culpable negligence” is a degree of carelessness greater than simple negligence. “Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others.)
(“Strangulation” means intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the throat or neck, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the alleged victim.)
(“Suffocation” means intentionally, knowingly, or recklessly impeding the normal breathing of a person by covering the mouth of a person, the nose of a person, or both, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the alleged victim.)
NOTE 3. When the alleged victim is a child under the age of 16 years, add the following instruction.
(Knowledge that the person allegedly assaulted was under the age of 16 years is not an element of this offense. Accordingly, if you are convinced beyond a reasonable doubt that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, you are advised that the prosecution is not required to prove that the accused knew that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, and it is not a defense to (strangulation) (suffocation) of a child even if the accused reasonably believed that (state the name of the alleged victim) was at least 16 years old).
Source: Instruction 3a-77-11 · view original on jagcnet.army.mil
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
NOTE 2. CAUTION. Pursuant to his authority under Article 56(a), the President did not establish a maximum punishments for assault with intent to commit sexual assault or assault with intent to commit sexual assault of a child until the signing of EO14103 effective 28 July 2023. To determine the maximum punishment for assault with intent to commit sexual assault or sexual assault of a child prior to 28 July 2023, see RCM 1003(c) and US v Beaty, 70 MJ 39 (CAAF 2011).
Maximum punishment
(1) With intent to commit murder, rape, or rape of a child: DD, TF, 20 years, E-1. (Category 3)
(2) With intent to commit voluntary manslaughter, robbery, arson, burglary, kidnapping, sexual assault (See NOTE 2), or sexual assault of a child (See NOTE 1): DD, TF, 10 years, E-1. (Category 3)
Sample specification
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, with intent to commit (murder) (voluntary manslaughter) (rape) (rape of a child) (sexual assault) (sexual assault of a child) (robbery) (arson) (burglary) (kidnapping), assault __________ by (striking at (him) (her) with a ____________) (___________).
Elements
(1) That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by (state the manner of the assault or battery alleged); and
(2) That, at the time, the accused intended to (kill) [commit (rape) (rape of a child) (sexual assault) (sexual assault of a child) (robbery) (arson) (burglary) (kidnapping)].
Definitions & other instructions
NOTE 3. Assault by attempt. If the specification alleges (or the facts indicate) an attempt to do bodily harm, give the following instruction:
An “assault” is an unlawful attempt, made with force or violence, to do bodily harm to another, whether or not the attempt is consummated. The accused must have committed an overt act with the specific intent to inflict bodily harm. An “overt act” is an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. It is not necessary that bodily harm be actually inflicted.
“Bodily harm” means an offensive touching of another, however slight.
An attempt to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
NOTE 4. Assault by offer. If the specification alleges (or the facts indicate) an offer to do bodily harm, give the following instruction:
An “assault” is an unlawful offer, made with force or violence, to do bodily harm to another, whether or not the offer is consummated. The accused must have made a demonstration of violence, by an intentional act or omission, which created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm. It is not necessary that bodily harm be actually inflicted.
(Do not provide this instruction when an intent to commit murder or voluntary manslaughter is charged. Otherwise, provide the instruction): Specific intent to inflict bodily harm is not required.
“Bodily harm” means an offensive touching of another, however slight.
An offer to do bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
(The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, if the combination constitutes a demonstration of violence.)
NOTE 5. Assault by battery. If the specification alleges (or the facts indicate) an assault by battery, give the following instruction:
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional act or omission.
“Bodily harm” means an offensive touching of another, however slight.
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
NOTE 6. Elements of offense allegedly intended. Give the following instruction in each case:
Proof that the offense of (state the offense allegedly intended) occurred or was committed by the accused is not required. However, you must be convinced beyond a reasonable doubt that, at the time of the assault described in the specification, the accused had the specific intent to commit (state the offense allegedly intended).
The elements of that offense are: (state the elements of the offense intended).
NOTE 7. Intent to commit murder or voluntary manslaughter. If the accused is charged with assault to commit murder or voluntary manslaughter, the military judge must instruct that the accused must have had the specific intent to kill; an intent to only inflict great bodily harm is not sufficient. US v. Roa, 12 MJ 210 (CMA 1982). The following instruction should be given after the elements of the offense intended when the intended offense is murder or voluntary manslaughter:
To convict the accused of this offense, proof that the accused only intended to inflict great bodily harm upon the alleged victim is not sufficient. The prosecution must prove beyond a reasonable doubt that the accused specifically intended to kill (state the name of the alleged victim).
Source: Instruction 3a-77-12 · view original on jagcnet.army.mil