I conducted a summary trial for a similar circumstance last month. The soldier was a student on the PSWQ crse, and had a negligent discharge on the pistol range. Because the incident occurred during a "basic training course", he was charged under Section 129 of the NDA for failing to correctly execute a drill that he had been trained to perform (and previously tested on). The soldier had performed the unload drill correctly, right up to the point where he inserted the partially-loaded magazine back in the weapon prior to releasing the slide and firing the action with the weapon pointed safely down-range. As a result of his momentary lapse of attention to detail, the individual had essentially reloaded and made ready, rather than drop the slide on an empty chamber.
As I always do when acting as a Presiding Officer, I queried the JAG regarding the "going rate" punishment for such an offence. I then have a reasonable baseline to adjust from in determining sentencing should the accused be found guilty. Whether the punishment (or a variation thereof) gets adjusted upwards or downwards is dependant upon whether there are exacerbating or mitigating circumstances. Whether or not such circumstances exist is determined through the presentation of documentary or witness evidence, coupled with the accused's testimony and sentencing representation (should he choose to testify on his own behalf).
In the case I described above, there were mitigating circumstances revealed through witness statements and the accused's testimony:
- The day of classroom training that PSWQ students are supposed to receive on the pistol was compressed.
- The confirmatory range practice that is supposed to be conducted the next day was delayed for 24 hrs due to a range scheduling conflict. There was therefore reason to expect skill-fade between completion of the instruction and TOETs and the confirmatory live-fire.
- The soldier in question had never handled a pistol (civilian or military) prior to the day of instruction on the PSWQ course.
- The soldier had correctly carried out the unload drill (less the fundamental sequential error) to include consciously ensuring that he fired the action with the weapon pointed in a safe direction.
- Perhaps most important (to me), the soldier admitted that he was confident in his handling drills, did not require additional training, and had simply suffered a momentary "brain fart" while performing the unload.
Based on the above, I found the accused guilty of the charge as laid. However, I was lenient in sentencing based on the mitigating circumstances. I don't believe in minor fines, because they have little impact in teaching a soldier the error of his or her ways. The troop pays the fine and promptly forgets about it. Instead, I exercised my option of a lesser punishment and sentenced the soldier to 3 days Stoppage of Leave - which includes "show parades" in different orders of dress at different times, but does not include extra work and drill. Essentially, the ND on a training course range cost the soldier his weekend at home, with some personal inconvenience added to the mix. Enough time for him to ponder his mistake, without being excessive.
I would suggest that in this case, a similar minor punishment will be assigned if the accused is found guilty. And based on what I've read thus far, I have little doubt that he will be found guilty. After all, if he was unsure of what to do with a hard-extraction, he could have simply raised his hand and obtained assistance from an ARSO. Instead, he wilfully pulled the trigger, and whether he believed the weapon to be unloaded or not is irrelevant. Yes, the weapon malfunctioned. But not in a manner that caused the weapon to discharge without willful human interaction.
There are mitigating factors at play here, and I strongly advise the accused to bring those factors to light by agreeing to offer testimony during the trial. Not having been taught how to deal with a hard-extraction is the key mitigating factor, but there are others - such as ensuring that the weapon was discharged in a safe direction. By offering testimony, the accused is ensuring that the Presiding Officer has all of the necessary context to make a fair finding of innocence/guilt and if the latter, to assign a reasonable sentence.
The accused would be well-advised in this case, to go with a summary trial by delegated officer. The powers of punishment are then limited to a maximum of 25% of the soldier's gross monthly pay, and/or 14 days Confinement to Barracks (with extra work and drill), or 7 days Extra Work and Drill, or 14 days Stoppage of Leave (no extra work and drill). As soon as the charge is referred to the unit CO, the powers of punishment increase considerably. However, in this case there would be no reason for the Delegated Officer to refer the charge higher, as his powers of punishment are adequate. Going the Court Martial route is a real roll of the dice. While Director Military Prosecutions may decide not to proceed with convening a court martial for such a minor offence, they may also decide to make an example of the soldier in order to discourage future attempts to thwart the military justice system. If the charge does go to court martial and there is a finding of guilty, the range of potential punishments is much more severe.
This case is pretty cut and dried, and the advice given thus far is pretty much bang-on. Accept the summary trial, admit to the particulars of the charge (if they are accurate), offer testimony to ensure that the Presiding Officer understands exactly what happened (context), and then take your lumps. My educated guess regarding an appropriate sentence is less than a week of CB and/or a fine in the range of $200-$300.
FWIW, based on my experience having deal with more than a few such cases.....
