EI INCUMBIT PROBATION QUI DICIT. Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

Article 134- Firearm, Discharging through Negligence

Paragraph 80 of the Manual of Court Martial deals with the offense of discharging a firearm through negligence. The text of Article 134 does not mention any offense, though the offenses are mentioned in the succeeding paragraphs. The text says, that all neglects and disorders which are adverse to the discipline and good order in the armed forces or conducts which can bring discredit to the armed forces, will be punished by a court martial.

Elements of the Offense (Firearm, Discharging through Negligence)

  • The accused has discharged a firearm.
  • The discharge of the firearm occurred because of the defendant's negligence.
  • Under these circumstances, the accused's conduct was against the discipline and good order in the armed forces or the nature of the act brought discredit to the armed forces.

Maximum punishment for the offense

The maximum punishment if a service member is found guilty of this offense, is 3 months of confinement and forfeiture of 2/3 rd of monthly pay, for three months. For more information on this offense please refer to the manual of Court Martial.

Explanation for elements

'Negligence' is said to have occurred when the accused did not exercise due care, that is, it is an act or omission of the individual who was under a duty to exercise due care. The act exhibited an absence of degree of care for the safety of other people, which a reasonably careful individual would have exercised in a similar or same circumstance.

When could such a situation occur?

If a soldier accidentally fires a firearm, he could be charged with negligence. Experts say that most of these incidents involve soldiers who are inexperienced in handling weapons. It can either happen because the safety lock on the firearm was not in position; the magazine has not been unloaded or if the soldier was playing around with the weapon or showing off. A mishandled weapon can lead to deadly consequences. Several soldiers have lost their lives and many more have been injured through negligent discharge of a firearm.

Negligent and accidental discharge of weapons can lead to in the line of duty investigations to determine the shooter's liability. If it is found that a soldier has acted outside his line of duty, by being reckless or due to consumption of alcohol, he can be handled penalties like jail time, monetary losses and violations of regulations and policies. This will not end here, the prosecution will also try to find if there have been any infractions of the firearm policy and each of these will carry its own charge.

For instance, if the firearm was located in the barracks, why was it not locked properly and why was it not stored unloaded in the approve container. Like this, the soldier can amass many criminal charges, which can even end his career.

An example for 'firearm, discharging through negligence'

This incident happened at Grafenwhor in Germany, where the U.S Army has a garrison. Grafenwhor is also the largest training area for NATO troops in Europe. The base has a large number of training ranges for everything from artillery, tanks, M-16s and more.

One squadron was training in a M113 (an armored personnel carrier), practicing an assault. Just before the squadron headed out, the platoon leader gave everyone participating in the training session some weapons lubricant and advised them to ensure that their firearms were lubricated. One of the soldiers was armed with a M249 light machine gun. The M249 feeds from a belt, but it also has a rifle magazine on the side. The soldier's weapon had a side magazine.

The soldier did not notice it, but when he was lubricating the feed tray, one of the rounds from the magazine entered the chamber. There, it was struck by the firing pin which caused it to fire. Six more rounds were fired in quick succession. The bullets hit the track commander in the left leg and went through, hitting the driver in the back. The track commander, a sportsperson in his college days lost most of his leg. The driver was also discharged from the army with 100% disability. The soldier was court martialed for showing negligence and was handed an 18 month prison term.

Mr. Jordan has successfully defended soldiers against allegations of negligent discharges. Call (888) 616-6177 today to get started.

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