Posted on Oct 17, 2020
Is unlawfully carrying a weapon punishable under UCMJ?
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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?
Posted in these groups: 
UCMJ
UCMJ
Posted 4 y ago
Responses: 15
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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.
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.
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SFC James Cameron
To add a little to what SFC Boyd stated, there are only three types of counseling’s: Event Oriented, Performance, and Professional Growth. All these other ideas and claims of “negative” and “derogatory” counseling’s are false and humorous honestly. It even provides the types of counseling for you on the 4856. Let the events you describe in the counseling’s body be explicit and to point of fact; without conjecture or emotion.
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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.
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Sgt Dale Briggs
I take it the soldier lives off base, getting caught on base DUI carrying a weapon would be a real problem. Not that the civil charges he faces are insignificant, depends on many factors, but I suspect the official consult is the least of his worries.
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CWO3 (Join to see)
Sgt Dale Briggs - Another issue, but if/when he gets weapon back it needs to be in unit Armory or stored per regs, if he lives on base. For Us Mucks in 80 you stored a piece in armory if you were a barracks rat. They issued a pistol card and you could draw it out to shoot around Quantico ranges. At Pendleton in 88 you had to register a piece with PMO if you lived in Housing. The rest was on you if you screwed up. Anything out in town definitely. Doubly screwed.
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LTC Jason Mackay
SSG (Join to see) you should counsel him on AR635-200.
Para 1-20
Section III of CH2, especially para 2-14
Ch14
Para 14-5
Para 14-12
AR 600-8-2 Suspension of Favorable Actions
Para 2-1e
Para 2-2
Para 3-1
I could not find it, but there is a duration of confinement pursuant to a civil conviction that the soldier MUST be separated. Under that threshold, the commander has the option of separating the soldier. You should inform the soldier that the commander may separate him if he is confined by civil authorities.
He was intoxicated, so he will likely be command referred to ASAP for treatment.
LT Christopher Miller have you seen 114D applied to this type of situation in the past? I'm not an attorney, but civil offenses usually would be under ART 134. Because of the MOA between DoD and the DoJ, the civil authorities will have right of first refusal to prosecute. SSG (Join to see) so it's not so much punishable under UCMJ unless the civil authority hands it back to the military to prosecute. I find this to Be unlikely unless their case mysteriously falls apart (doubtful).
Para 1-20
Section III of CH2, especially para 2-14
Ch14
Para 14-5
Para 14-12
AR 600-8-2 Suspension of Favorable Actions
Para 2-1e
Para 2-2
Para 3-1
I could not find it, but there is a duration of confinement pursuant to a civil conviction that the soldier MUST be separated. Under that threshold, the commander has the option of separating the soldier. You should inform the soldier that the commander may separate him if he is confined by civil authorities.
He was intoxicated, so he will likely be command referred to ASAP for treatment.
LT Christopher Miller have you seen 114D applied to this type of situation in the past? I'm not an attorney, but civil offenses usually would be under ART 134. Because of the MOA between DoD and the DoJ, the civil authorities will have right of first refusal to prosecute. SSG (Join to see) so it's not so much punishable under UCMJ unless the civil authority hands it back to the military to prosecute. I find this to Be unlikely unless their case mysteriously falls apart (doubtful).
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