Supervisor of a negligent discharge?

[DRTDEVL]

What is the name of your state (only U.S. law)? Deployed to Iraq...

A few nights ago, I was supervising Soldiers clearing weapons at a clearing barrel, just like I have done hundreds of times before in the past 9 months. When one of the Soldiers was clearing the weapon, a ND happened. The round was lodged in the chamber, no magazine present, and the cartridge was tarnished to the point that it was very dark in color. Neither I nor the Soldier saw the round in the chamber, even using a Surefire light. The discharged round was contained within the clearing barrel. All steps were followed in order, the Soldier was sounding off with each step (as our BN SOP states), but we were unable to distinguish the round in the chamber from an empty chamber in it's condition.

The incident was immediately reported, and we were ordered to report to the CSM and BC. The BC ordered our PSG to recommend us both for a Field Grade Article 15 immediately without waiting for the coming 15-6 investigation.

What would the charge on mine likely be? This will be a career ender for me, no matter the outcome, as I am losing my (P) status the moment the flag is initiated and I will cross the RCP for my grade in a non-promotable status in a few months. If I am charged with dereliction of duty, do I even have a defense? I plan on taking this to courts-martial, as the BC has already made his mind up that I will lose rank over the incident. I have nothing to lose, everything to gain, and a chance to maintain my dignity and separate from the service this fall as an E-5.

Another piece of information that may or may not be relevant is that in over a dozen similar cases this deployment, this is the first time the BC has ordered recommendation for Article 15. Every other time, the 15-6 determined retraining and Division Policy requires a General Letter of Reprimand, but never has NJP been handed out.

I will be seeking counsel at TDS once the process begins, possibly sooner if the mission allows. Hopefully BadApple has some insight.

 

[ERAUPIKE]

Another piece of information that may or may not be relevant is that in over a dozen similar cases this deployment, this is the first time the BC has ordered recommendation for Article 15. Every other time, the 15-6 determined retraining and Division Policy requires a General Letter of Reprimand, but never has NJP been handed out.

With a dozen ND's is it surprising that you are being taken to NJP.

 

[pete07172]

Dude take it to court martial, if you know the other soldier's that had a ND then have them brought up as witnesses and have them pleade your case for you. One thing about the Army, if you can prove favorable action for one and others you already know IG will get involved and if they find it true they will reprimand the BC and releave him of his duties... so good luck, be safe and do what you do as an NCO and bring them soldiers home.

 

[navdoc]

All I can add is my best wishes and good luck on this.
Have you tried the other board (PBB) that we are on? They helped me out quite a bit on my situation. Not to slight the good advice that I have seen here. The other one just is a little more active and may provide more of an insight.

 

[DRTDEVL]

Thanks, Bev... I am not sure this material is suitable for the PBB. Well, more accurately, I am under enough stress at this time than to expose myself more to the potential flaming that could ensue.

Yes, it *is* curious that this is the first NJP being handed out.

I received my counseling last night informing me of everything I already knew... I am now flagged (suspension of favorable actions). I am now removed from the promotion standing list.

I actually have a new question (hopefully I will get to JAG today for an answer). When electing trial by courts-martial, can I request a summary courts martial, or will the prosecution be the ones to determine which forum in which the case is heard? Under a Summary Courts-Martial, a lot of the same punishments apply as in the Field Grade, some are gone, and some are increased. It would seem I have a better chance at making it through this unscathed in a summary than any other option. As an E-5, I can only be reduced to E-4, lose 2/3 of one months' pay, and be restricted for 60 days. This would compare to the field grade article 15's reduction to E-4, loss of 1/2 months' pay for two months, 45 days extra duty, 60 days restriction (45 days if extra duty is imposed).

 

[ERAUPIKE]

The maximum punishment a summary court-martial may award is: confinement for 30 days, forfeiture of two-thirds pay for one month, and reduction to the lowest pay grade (E-1). You are not entitled to be represented by a military attorney, but may hire a civilian lawyer at his own expense. [In rare cases, military exigencies may preclude the reasonable availability of civilian counsel.] In your case, where the accused is above the fourth enlisted pay grade, a summary court-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next lowest pay grade.


A special court-martial has jurisdiction over all personnel charged with any UCMJ offense referred to it by the convening authority. The panel is composed of not less than three members, which may include commissioned officers and enlisted members (at the accused’s request). They are usually presided over by a military judge. The military judge may conduct the trial alone, if requested by the accused. A military lawyer is detailed to represent the accused member at no expense to the accused. The member may instead request that a particular military attorney (of any service, stationed anywhere in the World). The member may also retain a civilian attorney at no expense to the government The prosecutor is a military lawyer (judge advocate), unless precluded by military exigencies. The maximum punishment a special court-martial may adjudge is: confinement for 12 months, forfeiture of two-thirds pay for 12 months, reduction to the lowest pay grade (E-1), and a bad conduct discharge. (Note: In May 2002, maximum confinement and forfeitures changed from 6 months to 12 months).

 

[DRTDEVL]

*****UPDATE*****

It's time for round 2...

I called JAG and was advised to make no more statements about the case. I was also informed that the case had "UIC Issues" (Undue Influence of the Command). Apparently one person can not be the accuser, the recommender, the judge, the jury, and the executioner... Something about due process being violated.

Fast forward 2 weeks:

I have been informed over the past week by my own personal "moles" that BDE Legal is having a tough time making their case for prosecution. They cannot charge me without something in writing (policy memo, regulation, etc) having been violated. The Soldier involved had his initial reading of the Field Grade Article 15 today.

I was ordered by my chain of command to write a sworn statement today stating "I have been briefed and understand my duties and responsibilities as an NCO and a TC to ensure all weapons in the vehicle are cleared at the ECP."

Do they really think I am that stupid/ignorant?

I turned in a statement of differing contents. I basically wrote a statement saying that I am being ordered to write another statement in an attempt to get me to self-incriminate, that I have spoken with counsel, that I have not yet been advised of my rights under Article 31a, and that I am exercising my rights to counsel and to remain silent.



Now comes the heart of the matter. This is obviously no longer being handled in a professional manner. What rights do I have to redress under Article 138, and how would I exercise those rights? I will be calling JAG again tomorrow afternoon when I return from a range, but they seem adamant about not representing a Soldier prior to him being charged. I hope with these new developments that they will agree to see me.

BTW: I have kept copies of both counseling statements and the sworn statement from today (in case it suddenly disappears).

 

[publius]

I was ordered by my chain of command to write a sworn statement today stating "I have been briefed and understand my duties and responsibilities as an NCO and a TC to ensure all weapons in the vehicle are cleared at the ECP."

That really stinks, if you haven't been advised of your Article 31 rights yet. And it's Article 31(b) that's at issue here:

"No person subject to this chapter may interrogate or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected, and that any statement made by him may be used as evidence against him in a trial by court-martial."

They obviously suspect you of an offense -- they've already announced their intention to administer an Article 15! They've not only REQUESTED a statement from you, they've ORDERED it. Even if you gave the statement (which I'm sure your defense counsel would not recommend) it would not do them any good per Article 31(d):

"No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement, may be received in evidence against him in a trial by court-martial."

 

[CGRAY]

"No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement, may be received in evidence against him in a trial by court-martial."

I don't know much about the laws of evidence, but i noticed the above section denotes "trial by court-martial". What about NJP? Would it possibly be admissable then?

 

[DRTDEVL]

I don't know much about the laws of evidence, but i noticed the above section denotes "trial by court-martial". What about NJP? Would it possibly be admissable then?

It wouldn't matter, as I would elect trial by courts martial.

It really wouldn't matter since the person ordering the coercion is also the person ordering the recommendation and would be the person overseeing the NJP proceeding. This is why I refuse Article 15, and would elect trial by courts martial.

 

[DRTDEVL]

Another update:

Since my last post, the CoC has coerced statements from both my direct supervisor and the Platoon Sergeant stating I understand my duty to clear all the weapons in my vehicle... Not sure if that will help me or not, as the Soldier in question was the driver of another truck and I had no idea his weapon had been passed off to the gunner in their turret (the gunner's personal weapon was an M249 SAW).

Either way, it was enough for BDE Legal to press the charges... So far, I know Dereliction of Duty is on the table, but I don't know if there are any others stacked in there. I went to the CSM this evening, and he was beginning to read the Article 15 to me when he stopped mid-sentence and began writing on it due to typographical errors. I have to report back tomorrow for my first reading.

To date, there has been no 15-6 investigation, and I have yet to have been read my rights ( not even by the CSM prior to his attempt at reading the Article 15 to me).

Where the heck is badapple when I need him?

 

[ERAUPIKE]

Another update:

Since my last post, the CoC has coerced statements from both my direct supervisor and the Platoon Sergeant stating I understand my duty to clear all the weapons in my vehicle... Not sure if that will help me or not, as the Soldier in question was the driver of another truck and I had no idea his weapon had been passed off to the gunner in their turret (the gunner's personal weapon was an M249 SAW).

Either way, it was enough for BDE Legal to press the charges... So far, I know Dereliction of Duty is on the table, but I don't know if there are any others stacked in there. I went to the CSM this evening, and he was beginning to read the Article 15 to me when he stopped mid-sentence and began writing on it due to typographical errors. I have to report back tomorrow for my first reading.

To date, there has been no 15-6 investigation, and I have yet to have been read my rights ( not even by the CSM prior to his attempt at reading the Article 15 to me).

Where the heck is badapple when I need him?

You will not be advised of your rights until at least three days before the actual NJP hearing. The commanding officer or someone appointed by him will advise you clearly of all your Article 31 rights. You have the right to demand a trial by court martial which will create a greater burden of evidence for the prosecution. NJP only requires a preponderance of evidence, meaning that you only have to be more likely to be guilty than not. They are following standard protocol in advising you of the articles you have been charged with violating. You can request to see the evidence against you before the NJP proceeding and you do have a right to council at your own expense. If you are questioned by the designated investigating officer then you are required to be advised of your rights. It would seem prudent to ask for your rights to be read to you at the beginning of any interview as the officer can simply advise you of your rights at the outset of the interview. Hope this helps and best of luck.

 

[DRTDEVL]

I was read my initial by the CSM Monday evening... Only one charge, Dereliction of Duty. It took all of my self-discipline to not burst out with laughter (or even smirk) when he got to the part saying the Battalion Commander has not yet made a decision on guilt or punishment, because everyone here knows he already has. Rumor is circulating that he wants to impose maximum punishment allowed... He even suspended part of the Soldier's sentence due to "the mitigating factor is that the NCO should have prevented this from happening, not the Soldier".

I should be escorted to TDS today.

 

[DRTDEVL]

A little delay due to scheduling issues, but I was finally read yesterday. I elected trial by courts-martial, of course.

Now comes a few questions, hopefully a lawyer can answer...

How can I ensure I get an Article 32 hearing?

What, if anything, do I need to file for an Article 32 hearing?

Who would this be filed to/through?

Is it possible to get the charge tossed out in the Article 32 hearing if the prosecution cannot provide evidence of all three elements required under MCM Part IV, Para 16b(3) to be considered Derelict in the performance of my Duty?


The 1SG and CSM are PISSED! Apparently, even though I informed my supervisor of my intentions, they were in the dark as to what would take place. They were fully expecting to see me lose rank yesterday, yet only I, my supervisor, and my Platoon Sergeant knew I was electing trial by courts martial. The BC was shocked, paused, and repeated the question. He really couldn't say anything about it, had me initial, sign and date the form, and dismissed me. I could hear arguing and yelling after the door closed behind me.

I guess I am on better standing than I thought if they are this riled up about having to go to courts martial.

 

[samk]

I've been reading this thread with interest. I hope my question is not too stupid. What makes the discharge negligent? Why is your command making such a big deal out of this? Seems like it would have been negligent if the round had been fired while the weapon was pointed at something other than a clearing barrel. No one got hurt, other than a barrel, and isn't that what the barrels are for?