Fact check: Soldiers unlikely to be court-martialed for losing weapons, military law experts say

·6 min read

The claim: U.S. soldiers get court-martialed for losing rifle

The chaotic U.S. withdrawal from Afghanistan in August drew criticism from Congress, refugee advocates and even European allies. Social media users weren't any different.

President Joe Biden has taken heat for the military equipment Taliban fighters seized during their takeover of Kabul. On social media, some Americans criticized Biden for "leaving behind" military weapons, comparing it to what soldiers face if they lose their weapons.

"Every soldier is aware they get court martialed for losing their rifle. So what do generals and presidents get when they leave behind weapons for an entire army?" says an image shared Aug. 30 on Facebook.

The post accrued over 21,000 shares in less than three weeks. Other versions of the image have also racked up thousands of shares.

Similar claims have recently gone viral, misconstruing the number of American weapons in the Taliban's hands.

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Military law is complicated, and there can be multiple types of repercussions if a soldier loses or misplaces a weapon. But a court-martial is an unlikely option, experts told USA TODAY.

USA TODAY reached out to the poster for comment.

Losing a weapon considered minor offense

While it's possible that a soldier could be court-martialed for losing a weapon, it's highly unlikely, according to Richard Rosen, the director of the Center for Military Law and Policy at Texas Tech University.

"I think the (Facebook) comment is hyperbole," Rosen told USA TODAY. "The guy just wanted to make the point that a lot of soldiers can get punished for losing a weapon, and yet the United States lost $80 billion worth of equipment (in Afghanistan) and no one seems to be suffering any consequences."

The U.S. spent more than $83 billion during the Afghanistan War building the Afghan National Defense and Security Forces, according to a recent special inspector general for Afghanistan reconstruction report. USA TODAY previously reported that about $28 billion went to things like weapons, ammunition, vehicles, night-vision devices, aircraft, and surveillance systems.

Losing a weapon is often regarded as a minor offense, according to Rosen, who worked as a staff judge advocate overseeing and advising on legal proceedings, including court-martials, at Fort Hood, Texas, in the 1990s.

The punishment, Rosen said, would normally be a "non-judicial punishment," also known as an "Article 15." Under the Uniform Code of Military Justice, Article 15 is a "means of handling minor offenses requiring immediate corrective action."

The purpose is to discipline service members for minor offenses, like reporting late for duty, petty theft or sleeping on watch.

The immediate commander of the accused service member is the one who decides what type of punishment is appropriate for an Article 15 offense.

The hearing for such an offense is non-adversarial; the commander conducts the hearing and there isn't any questioning from opposing sides.

For losing a firearm or weapon by negligence, meaning it wasn't on purpose, some of the most common types of non-judicial punishments include partial or full forfeiture of pay for up to one year and restricted access to certain parts of a post, Rosen said.

Depending on the value of the lost weapon, the punishment can also include a bad conduct discharge or six months of confinement at the U.S. Disciplinary Barracks, a Defense Department maximum-security correctional facility in Fort Leavenworth, Kansas.

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A service member can refuse the Article 15 punishment and request a court-martial, although that often leads to a harsher sentence. Rosen said he does not remember a single case when losing a firearm has been presented at a court-martial proceeding.

Courts-martial explained

Under the UCMJ, a trial by court-martial starts with presenting evidence to the judge, or judges, who will make a decision concerning the accused's guilt.

If the service member is convicted, a sentencing hearing is held.

There are three types of trial by court-martial depending on the severity of the offense: summary, special and general.

A summary court-martial is the least severe type of trial. It's often used to try enlisted service members for minor offenses that aren't addressed by non-judicial punishment, or who refuse to accept an Article 15. A single officer presides over the hearing and imposes the punishment.

A special court-martial is often characterized as a misdemeanor court. It can be composed of a military judge alone or three members and a judge. There is a prosecutor and a defense counsel present during the trial.

A general court-martial is the military's highest and most severe trial court, dealing with the most serious crimes. Before any charges are sent to a general court-martial, an investigation must be conducted. The trial can be presided over by a military judge and at least five members or just a judge.

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While there are various types of trials depending on the severity of the offense, there isn't any automatic punishment for any particular offense, military law attorney Grover Baxley told USA TODAY in an email.

"The chain of command determines what it believes to be the appropriate level of disposition for any allegation of misconduct on a case-by-case basis," Baxley said.

Theoretically, the chain of command could court-martial a member for losing their weapon if the circumstances are right, according to Baxley. For example, "if they took it off base, got drunk and left it in a nightclub," he said.

However, Baxley, who has been practicing military law for over 20 years and served as chief of military justice in the U.S. Air Force Judge Advocate General's Corps, doesn't recall any member being court-martialed for "simply losing or misplacing" their firearm.

Our rating: False

We rate the claim that U.S. soldiers are court-martialed for losing their rifles FALSE, based on our research. There is no automatic punishment for any particular offense. Instead, the chain of command decides what punishment is better suited for the offense, according to military law experts. It's unlikely that losing a weapon will end in a court-martial, and experts told USA TODAY they had no recollection of it ever happening.

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This article originally appeared on USA TODAY: Fact check: Losing a military firearm often considered a misdemeanor

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