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.
a. MAXIMUM PUNISHMENT:
(1) Striking or assaulting warrant officer: DD, TF, 5 years, E-1. (Category 2)
(2) Striking or assaulting superior noncommissioned or petty officer: DD, TF, 3 years, E-1. (Category 2)
(3) Striking or assaulting other noncommissioned or petty officer: DD, TF, 1 year, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about __________, (strike) (assault) __________, a __________ officer, then known to the said __________ to be a (superior) __________ officer who was then in the execution of (his) (her) office, by __________ (him) (her) (in) (on) (the __________) with (a) __________ ((his) (her)) __________.
c. ELEMENTS:
(1) That (state the time alleged), the accused was (an enlisted servicemember) (a warrant officer);
(2) That (state the time and place alleged) the accused (struck) (assaulted) (state the name and rank or grade of the person alleged) by (state the alleged manner of the striking or assault);
(3) That, at the time, (state the name and rank or grade of the person alleged) was in the execution of his/her office; (and)
(4) That the accused then knew that (state the name and rank or grade of the person alleged) was a (noncommissioned) (warrant) (petty) officer;
NOTE 2: Victim the superior noncommissioned/petty officer of the accused. If the victim was the accused’s superior noncommissioned or petty officer, the following two elements apply:
[(5)] That (state the name and rank or grade of the person alleged) was the superior (noncommissioned) (petty) officer of the accused; and
[(6)] That the accused then knew that (state the name and rank or grade of the person alleged) was his/her superior (noncommissioned) (petty) officer.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
A (noncommissioned) (warrant) (petty) officer is “in the execution of his/her office” when engaged in any act or service required or authorized by treaty, statute, regulation, the order of a superior, or military usage.
(The term “(noncommissioned) (petty) officer” does not include an acting (noncommissioned) (petty) officer.)
(“Struck” means an intentional contact and includes any offensive touching of the person, however slight.)
NOTE 3: Defining assault. When necessary, the judge should supplement these instructions with appropriately tailored instructions on “assault” and “assault consummated by battery.” See para. 3-52-1 and 3-52-2.
NOTE 4: Assault on superior charged. If charged with assault upon a superior noncommissioned or petty officer, give the following instruction:
“Superior (noncommissioned) (petty) officer” means a (noncommissioned) (petty) officer superior in rank to the accused.
NOTE 5: Divestiture of status defense. If divestiture of status is raised, instruct as follows:
The evidence has raised an issue as to whether (state the name and rank of the warrant, noncommissioned, or petty officer) conducted himself/herself prior to the alleged offense in a manner which took away his/her status as a (noncommissioned) (warrant) (petty) officer acting in the execution of his/her office. A (noncommissioned) (petty) (warrant) officer whose own (language) (and) (conduct) under all the circumstances departs substantially from the required standards appropriate for that individual’s rank and 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 the offense of assault on a (noncommissioned) (warrant) (petty) officer in violation of Article 91 of the Uniform Code of Military Justice only if you are satisfied beyond a reasonable doubt that (state the name and rank of the warrant, noncommissioned, or petty officer) did not abandon his/her status as a (noncommissioned) (warrant) (petty) officer acting in the execution of his/her office.
NOTE 6: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.