legal aspects of military discharges

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lemaymiami

lemaymiami

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This a request for info... I was always under the impression that a dishonorable discharge was the equivalent of a felony conviction - and that a "bad conduct" discharge was a misdemeanor equivalent... Can anyone shed some light on this? If possible it would be helpful to find out just what rules the armed services are under, as far as reporting these so that they're accessible to NICs....
 
Dishonorable discharge has been a disqualifier for gun purchase/ownership since the 1968 Gun Control Act.

Since lesser discharges (Bad Conduct Discharge) can involve criminal felonies or serious misdemeanors like Domestic Violence, the underlying cause of a lesser than Dishonorable Discharge may be a disqualifier in itself.

There are several sources at atf.gov on this.
 
Getting a dishonorable discharge automatic disqualifies the military member from being able to purchase a firearm. Read the information that the link GAF put on his post to understand the different kinds of discharges and what are usually involved regarding the discharge.
Here is a link. It provides some info.

https://themilitarywallet.com/types-of-military-discharges/

https://va.org/forms-of-military-discharge/
Click to expand...

Regarding the criminal information and listing him as being dishonorable discharge not being in NCIC and NICS, NICS is the database checked when an FFL holder calls the FBI to get a background on the subject purchasing a firearm. The information should of been in both databases as the has requirements for this kind of information must be sent to the Department of Justice and the FBI so it is put in the NCIC database and the gun background check database which is NICS. It seems that the information was never sent on to these agencies and databases. I have seen this several times as sometime the information is never sent over or is very slow getting over to the proper agencies. I have feeling that Congress will be having hearings over this. I hope this helps answer your question.
 
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According to a Reuters article published a few hours ago, the Air Force has admitted that it failed to tell NCIS about the shooter's domestic violence conviction.
 
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They are required by Pentagon regulations to notify the Department of Justice and the FBI who takes care of both databases, the NCIC database which is only accessible by criminal justice personnel and then the NICS database which is the database for background checks run by FFL dealers(gun shops). I have known of military personnel get away with buying a firearm with a dishonorable discharge due to the fact that the people at the Pentagon being really slow about reporting as required or they never get put in the system at all. It happens more than you think. Thats why I believe Congress will be having some serious talks with the military about its reporting. The Air Force is wrong in this case but all branches have done it also.
 
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lemaymiami said:
This a request for info... I was always under the impression that a dishonorable discharge was the equivalent of a felony conviction - and that a "bad conduct" discharge was a misdemeanor equivalent... Can anyone shed some light on this? If possible it would be helpful to find out just what rules the armed services are under, as far as reporting these so that they're accessible to NICs....
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Equating honorable vs dishonorable discharges to felony vs misdemeanor can get rather muddy. Since there are many things you can be punished for in the military that do not translate to a civilian offense. In regard to the Texas shooter, his purchases should have been blocked but the Air Force did not relay the data to NICS. I have also seen news outlets and blogs (both military and civilian) use bad conduct discharge and dishonorable discharge interchangeably.
 
According to everything I have read Devin Kelley was convicted under the UCMJ of crimes that would be a felony in any court in America.
 
GAF said:
According to everything I have read Devin Kelley was convicted under the UCMJ of crimes that would be a felony in any court in America.
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I think that you've got the wrong issue here. It's not a Felony conviction that was critical to Mr. Kelley's federal firearm's disability. It was his conviction for a misdemeanor crime of Domestic Violence that created the disability.

Having said that, I do have a question for the lawyer members of the forum. According to media reports, Mr. Kelley was convicted by a Special Courts Martial of several offenses carrying penalties of more than a year's confinement. However, under the MCM, a Special Courts Martial cannot impose more than a year's confinement, effectively making it a misdemeanor court. The federal law (18 USC 922) imposes the so-called "Felony" firearms disability upon those who were convicted of crimes carrying more that a year's imprisonment as a penalty. The way the law is worded, it's the maximum penalty that a person was liable to, not the penalty that they received, that counts. If Mr. Kelley was convicted of a crime carrying more than a year as the penalty, but was convicted by a court that could only impose a year as the penalty, is the disability triggered?
 
RickD427 said:
I think that you've got the wrong issue here. It's not a Felony conviction that was critical to Mr. Kelley's federal firearm's disability. It was his conviction for a misdemeanor crime of Domestic Violence that created the disability.

Having said that, I do have a question for the lawyer members of the forum. According to media reports, Mr. Kelley was convicted by a Special Courts Martial of several offenses carrying penalties of more than a year's confinement. However, under the MCM, a Special Courts Martial cannot impose more than a year's confinement, effectively making it a misdemeanor court. The federal law (18 USC 922) imposes the so-called "Felony" firearms disability upon those who were convicted of crimes carrying more that a year's imprisonment as a penalty. The way the law is worded, it's the maximum penalty that a person was liable to, not the penalty that they received, that counts. If Mr. Kelley was convicted of a crime carrying more than a year as the penalty, but was convicted by a court that could only impose a year as the penalty, is the disability triggered?
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A conviction for Domestic Violence results in a firearm disability regardless if it occurred in the military or in civilian life. It is Federal law..

I am not a lawyer

https://www.atf.gov/firearms/qa/wha...are-misdemeanors-purposes-18-usc-922d9-and-g9


"What State and local offenses are "misdemeanors" for purposes of 18 U.S.C. 922(d)(9) and (g)(9)?

The definition of misdemeanor crime of domestic violence in the Gun Control Act (GCA) includes any offense classified as a “misdemeanor” under Federal, State or Tribal law. In States that do not classify offenses as misdemeanors, the definition includes any State or local offense punishable by imprisonment for a term of 1 year or less or punishable by a fine.

[18 U.S.C. 921(a)(33); 27 CFR 478.11]"
 
Midwest said:
A conviction for Domestic Violence results in a firearm disability regardless if it occurred in the military or in civilian life. It is Federal law..

I am not a lawyer

https://www.atf.gov/firearms/qa/wha...are-misdemeanors-purposes-18-usc-922d9-and-g9


"What State and local offenses are "misdemeanors" for purposes of 18 U.S.C. 922(d)(9) and (g)(9)?

The definition of misdemeanor crime of domestic violence in the Gun Control Act (GCA) includes any offense classified as a “misdemeanor” under Federal, State or Tribal law. In States that do not classify offenses as misdemeanors, the definition includes any State or local offense punishable by imprisonment for a term of 1 year or less or punishable by a fine.

[18 U.S.C. 921(a)(33); 27 CFR 478.11]"
Click to expand...

Good summary here. But it leaves the original question unanswered.

When the law says "punishable by imprisonment for a term of one year or less" and the statute says more than a year, but the court is limited to a year or less, which one counts?
 
Technically, all SCM decisions are equivalent to civil misdemeanors. Except those for Domestic Violence.
All of the "less than honorable" discharges are similarly misdemeanor equivalent, other than those for Domestic Violence.
The Dishonorable Discharge, which is invoked by GCM (General Court Martial) is (somewhat) equivalent to a felony conviction, and like all Domestic Violence convictions, a specific for becoming a Prohibited Person.

Interestingly enough, despite the AF only running about 38% rate of informing NICS, the AF operates no prisons. The low-life was sent to the Navy Brig in San Diego. The Brig, as part of its discharge process informs prisoners of their rights, and any losses thereof.

So, our lowlife knowingly committed perjury on the 4473. Probably twice, as he used a Colorado address, probably to prevent any cross-check to the recently failed Texas LTC application.
 
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