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Ask the Lawyer: 'Concealed weapon' has broad meaning

Jul. 31, 2014 - 03:43PM   |  
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A firearms instructor holds a handgun up as he teaches a concealed-weapons training class. Article 134 of the UCMJ prohibits the unlawful carrying of a concealed dangerous weapon 'on or about the accused's person.' (George Frey / Getty Images)
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Q. Can a service member get in trouble for having a concealed weapon if he’s not physically carrying it?

A. The General Article of the Uniform Code of Military Justice, Article 134, prohibits service members from carrying concealed weapons.

That phrase — “carrying a concealed weapon” — gives the impression of being strictly related to firearms secretly kept in a hidden holster or in a carrying bag. But under Article 134, the definition of a concealed weapon is considerably more expansive.

Specifically, Article 134 prohibits the unlawful carrying of a concealed dangerous weapon “on or about the accused’s person,” with such conduct being prejudicial to good order and discipline or service-discrediting.

A weapon is deemed “concealed” when it is “intentionally covered or kept from sight” and it is dangerous when it is “specifically designed for the purpose of doing grievous bodily harm, or it was used or intended to be used by the accused to do grievous bodily harm,” according to the Manual for Courts-Martial.

The requirement for the concealed weapon to be “on or about the accused’s person” is what often gets troops in trouble. “On or about” means “the weapon was carried on the accused’s person or was within the immediate reach of the accused,” the MCM states.

In U.S. v. Nathan H. Ball (1997), the U.S. Coast Guard Court of Criminal Appeals found that a fireman apprentice committed this Article 134 offense by keeping his handgun in his shipboard locker.

Ball argued that his weapon was not concealed and failed to satisfy Article 134’s requirement that it be readily available to him, but the court disagreed.

In upholding his conviction on the Article 134 offense, the court said: “In the course of daily shipboard routine, living in close quarters, those weapons frequently would have been within appellant’s immediate reach in his berthing area locker.”

The court stated that the keeping of a concealed weapon in a shipboard locker was similar to keeping such a weapon in an automobile glove compartment or a locked briefcase in the backseat — all Article 134 violations.

Service members charged with carrying a concealed weapon should immediately contact a military law attorney. Depending on the circumstances, an attorney could show the weapon was not dangerous or concealed or that it was not easily accessible to the service member.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com.

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