Is unlawfully carrying a weapon punishable under UCMJ?

2020-10-17T04:13:42-04:00

I have a soldier that was arrested by local police for unlawfully carrying a weapon (he does not have a carry permit and was intoxicated). I was asked to counsel the soldier but I can not find anything in UCMJ that this is punishable under. Any ideas?

Response by CSM Chuck Stafford made Oct 17 at 2020 5:20 AM

2020-10-17T05:20:12-04:00

I'm not doing the counseling for you, but you did use the word unlawful in the title and in the text...

Response by SFC Private RallyPoint Member made Oct 17 at 2020 5:30 AM

2020-10-17T05:30:59-04:00

You just write exactly what you said. A counseling statement is not a legal writ, or a punitive action, or reading your Soldier their rights. It won't be used in a court of law and it has no bearing on any legal actions.
A counseling statement is just a piece of paper with your words written down and recorded so that your special person with a 15 second attention span can have a lasting record of your conversation and so you can show others that you did have that conversation. In this case your conversation is don't do dumb stuff/don't do illegal stuff.
Sure, he should be old enough to know better, but clearly he doesn't so your command asked you to sit down and tell him very clearly: Don't do dumb stuff - Drinking and guns =dumb stuff.
Your job isn't to punish him or recommend him for punishment and it's certainly not to be JAG. He's already going to be taken care of by local police in that area.

Response by SSgt Private RallyPoint Member made Oct 17 at 2020 5:47 AM

2020-10-17T05:47:00-04:00

114 D- CARRYING CONCEALED WEAPON
134 DISORDERLY CONDUCT, DRUNKENESS

Response by MSgt Eric Vollmer made Oct 17 at 2020 8:44 AM

2020-10-17T08:44:38-04:00

I would suggest looking under general order as I’m sure it is a violation to drink while in control of a firearm.

Response by LT Christopher Miller made Oct 17 at 2020 9:45 AM

2020-10-17T09:45:41-04:00

Article 114D of the UCMJ.

Response by CWO3 Private RallyPoint Member made Oct 17 at 2020 9:56 AM

2020-10-17T09:56:22-04:00

Civil authorities will prosecute. Counselling is supposed to be about developing soldiers, and also documenting both good and bad conduct. Unless you plan to charge under UCMJ, just document the event. Outline any ways his actions were wrong, what he needs to do to remain in good standing with Army. Get a commitment from member that he will abide in the future, and monitor his/her progress. By affixing a signature they accept the conditions, and you have a precedent for any future actions he may incur due to conduct. Articles 77 through 134 are the punitive articles. Don't downplay the severity of carrying a weapon (unlicensed) around drunk in the community. He may turn around, but if not you have done your job at least.

Response by SSgt Christophe Murphy made Oct 17 at 2020 11:32 AM

2020-10-17T11:32:11-04:00

Article 114 would be the applicable order under the UCMJ but that’s not really what you were told to do.

A formal counseling is something separate from the UCMJ. You just need to review what they did and what the repercussions could be due to those actions.

The civilian courts are gonna most likely nail him. Illegal conceal carry and handling a firearm while impaired are generally heavy charges. You also need to brief him on what may happen to his career if he is convicted of a felony.

Response by SFC Private RallyPoint Member made Oct 17 at 2020 12:53 PM

2020-10-17T12:53:25-04:00

Counseling is not punishment, sergeant. I would start the counseling by addressing the need to follow local laws as a representative of the US Army

Response by SGT Javier Silva made Oct 17 at 2020 2:36 PM

2020-10-17T14:36:15-04:00

To answer your question, and without looking at your summary, yes. Unlawfully carrying of a weapon is subject to the UCMJ, especially if it happens on post. Plenty of member have provided an article in the MCM. However, because this happened off-post, it will fall under the local jurisdiction first. All you're going to do is counsel the Soldier. Let JAG handle all the lawyery stuff.

Response by MSG Private RallyPoint Member made Oct 17 at 2020 5:54 PM

2020-10-17T17:54:17-04:00

That wasn't a bright move on SMs part.

Response by Sgt Dale Briggs made Oct 19 at 2020 1:34 PM

2020-10-19T13:34:06-04:00

I’m so far removed I feel like a relic, but I might sit with the First Shirt to get his opinion of how to proceed, that’s what he’s there for. Especially since it’s a civil case and UCMJ might not apply since it wasn’t on base. Perhaps a sit down with base legal might be in order as well to see what their position might be.

Response by GySgt Kenneth Pepper made Oct 19 at 2020 1:58 PM

2020-10-19T13:58:12-04:00

I agree with most here who say citing the UCMJ is not necessary. He got caught doing something illegal and stupid off base. Charges will be coming from the city/county/state/whatever. That should have to play out before any military charges are filed.

Now, what the SM really needs is to hire a local attorney familiar with local laws and judiciary procedures to help save him from ending up in jail. Base legal may be able to provide some insight, but they have limitations. Investing in good, local legal representation is very important.

Response by 1SG Alfred Webster made Oct 23 at 2020 6:18 PM

2020-10-23T18:18:46-04:00

CONDUCT UNBECOMNG .

Response by PO3 Theresa Dixon made Oct 24 at 2020 1:27 PM

2020-10-24T13:27:18-04:00

That's a felony in Colorado and in most States, as well as a federal crime for being drunk and carrying a firearm. I'm a retired Colorado police officer and federal officer. Your SOLDIER is a really serious problem.

Response by 1SG Alfred Webster made Dec 20 at 2020 12:22 PM

2020-12-20T12:22:57-05:00

Yes it is.