This question carries an assumption that needs to be addressed before it can be answered accurately, because the structure of the Uniform Code of Military Justice changed. For many years Article 90 was titled assaulting or willfully disobeying a superior commissioned officer, and it covered both the act of striking or assaulting such an officer and the act of willfully disobeying a lawful command. The Military Justice Act of 2016, which took effect on January 1, 2019, separated those offenses. The assault on a superior commissioned officer provision was moved to Article 89b, while Article 90 today addresses willful disobedience of a superior commissioned officer. Many older articles, references, and law firm summaries still describe assault as part of Article 90, which is why the question is framed that way. The substantive law of what counts as an assault, however, did not change, and that body of law answers the question directly.
What assault means in military law
In military law, assault does not require that the accused land a blow. An assault is an attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated. That definition contains two distinct theories. One is the attempt type assault, where the accused tries to inflict bodily harm and the effort falls short. The other is the offer type assault, where the accused puts the victim in reasonable apprehension of immediate bodily harm by a threatening act, even if no contact was ever intended to be completed. Under both theories, the offense is complete without any physical touching.
When contact does occur, the conduct is usually charged as a battery, which is an assault in which the bodily harm is actually inflicted. So contact elevates an assault to a battery, but contact is not what creates the assault in the first place. This is the key point for the question posed.
So is physical contact required, or is attempted force sufficient?
Physical contact is not required. Attempted force is sufficient, and so is a menacing offer of force that places the officer in reasonable apprehension of immediate harm. An accused who swings at a superior officer and misses, who lunges with intent to strike, or who raises a weapon in a threatening manner can commit an assault even though no contact lands. Completed contact is not an element of assault. It is what distinguishes a battery from a simple assault.
This means a service member can be charged with assaulting a superior commissioned officer based on attempted or threatened force alone. The absence of a bruise, a blow, or any touching is not a defense to the assault itself, although it may matter to whether the conduct is charged as an assault or as the more serious battery, and it may matter at sentencing.
The elements that make the assault aggravated by rank
Whether the offense is charged under the current Article 89b or described under the older Article 90 framing, the feature that distinguishes it from an ordinary assault is the victim’s status. The prosecution must show that the accused assaulted a commissioned officer, that the officer was the accused’s superior commissioned officer, that the accused knew the person was a superior commissioned officer, and that the officer was in the execution of office where the offense requires it. The knowledge element matters. A member who genuinely did not know the person was a superior commissioned officer may contest that element, which can affect whether the aggravated form applies even if some lesser assault occurred.
Why the renumbering matters in a real case
The renumbering is more than a technicality for a service member facing charges. A charge sheet drafted after January 1, 2019, for assaulting a superior commissioned officer should reference the current article, and a specification that misstates the controlling provision can be challenged. For older conduct, the article in effect at the time of the offense generally governs. Counsel should confirm which version applies, because the proper charge, the elements the government must prove, and the maximum punishment all flow from that determination. Relying on a dated summary that lumps assault and disobedience together under Article 90 can lead to error.
Practical implications for the defense
Because no contact is required, a defense to this kind of assault rarely succeeds by pointing out that no blow landed. The more productive lines of defense focus on the elements that actually carry the offense. Did the accused have the present ability or apparent ability to carry out the threatened harm, or was the gesture too remote to constitute an attempt or a genuine offer of violence? Did the alleged victim experience reasonable apprehension of immediate harm, or was the reaction unreasonable? Did the accused know the person was a superior commissioned officer? Was the conduct justified or excused, for example by self defense? Each of these can defeat or reduce the charge in ways that the simple absence of contact cannot.
Bottom line
Physical contact is not required for an assault on a superior commissioned officer. Attempted force, and even a threatening offer of force that creates reasonable apprehension of immediate harm, is enough. Contact converts an assault into a battery rather than creating the assault. The one caution is the framing: under the current code this offense sits in Article 89b, while Article 90 now addresses willful disobedience, a change effective January 1, 2019 that a service member and counsel should account for when reviewing any charge.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.