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: DD, TF, 3 years, E-1. (Category 2)
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 (sentinel) (lookout) in the execution of (his) (her) duty, ((in) (on) the __________) 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 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.
d. DEFINITIONS AND 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.