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) 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)
b. 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 __________.
c. 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).
d. DEFINITIONS AND 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.