Is a Bad Conduct Discharge a Felony

[ChestyP]

Actually,

a Special Court Martial (SpCM) can award 6 months confinement, 6 months loss of pay and allowances, and a BCD --unles the Manual for Courts Martial (MCM) has changed in the 15 years since I retired. A Summary Court Martial (SCM) is limited to 30 days confinement plus lost pay (2 months?). ands reductions in rank, of course.

My last trial was in a district court (misdemeanor) assault case. I listed my military judicial experience on the voir dire form because it usually gets me booted off the case. The defense counsel in this case, a Seattle high visibility criminal defense attorney, when questioning me during voir dire, opined that the military legal system was better and fairer than the civil system. I agreed and sat there, smiling smugly, knowing I was about to be challenged off the jury. He didn't. I wasn't. Big mistake. We found his equally high roller defendant guilty (because he was guilty).

Inside the military we crack jokes like, "Let the wheels of justice spin, bring the guiilty bastard in." But in reality, the UCMJ is light years ahead of civil law. And it's far easier to have charges dismissed in military law.

 

[57Coastie]

DrewH,

A death sentence adjudged by a General Court-Martial would go through several stages of review, both administrative and judicial. Many a court-martial case has gone up to the U. S. Supreme Court, but it would not be automatic.

 

[57Coastie]

ChestyP says,

a Special Court Martial (SpCM) can award 6 months confinement

Right, Chesty. My bad. :banghead: A senior moment on the keyboard. Absolutely right. I went back and corrected that post, Chesty, to avoid future confusion. Thanx for the heads-up.

Jim

 

[57Coastie]

ChestyP says,

But in reality, the UCMJ is light years ahead of civil law. And it's far easier to have charges dismissed in military law.

You do my heart good. I find that those who have criticisms of the military justice system tend more often than not to have never been in the military, or, if they were in the military, got seriously cross-wise with the system. I do not exclude experienced civil lawyers from this observation.

Jim

 

[JerryM]

As for me, if one has a BCD he should have to live with it forever. There are consequences for your actions. A member of the military should be held to the highest standards, and represent our nation's military in the highest manner.

In life we make decisions, some good and some not so good, and some bad. To serve one's country is an honor, and to abrogate the responsibility that goes with it has consequences. In my experience the military justice system is the fairest in the world, and much more so than our civilian justice system.

I personally want nothing to do with anyone who has less than an honorable discharge. Your discharge follows one all his life, and a BCD should also.

Jerry

 

[EricSr]

Not that I am justifying what I did was a good choice but it was the only choice I had. After serving in Operations Just Cause and a West Pack and then Operations Desert Shield and Desert Storm fiathfully we returned back to the states and my father suffered a stroke. I requested emergency leave and I was denied. I left home and 32 days later my father died. If I did not go I would have never again seen my father. The consequences of my actions I will forever have to live with. It eats me up inside every day of my life. To this day in my heart I feel that I had no choice. I love my country and I love my Corps. I live in a very small town and the local sheriff called me in and I was taken back to my duty station. I served one week in the brig and was given my BCD. I wish I could have been given a chance but the fact is we are held to higher standards and for my actions I was given what was meant to be. But to the comment stated earlier, I am not a coward and I did not turn my back on my fellow Marines.

 

[Ratzinger_p38]

Your answer is no.

I checked on this, in fact at one of the ATF sites for 'disqaulifying conditions' for gun ownership, it says the part about dishonorable, but then says something like "(this does not include other forms of discharge, such as a Bad-Conduct discharge)."

A friend of mine from way back in basic got a BCD for 'pissing hot' (he smoked weed on base) and this question came up.

 

[MEDDAC19]

It was always my understanding that after 30 days of AWOL or UA the charge became desertion. That would be something I would never want on my record, and would probably be a dishonorable discharge, automatically, if not it should be.

 

[Jacka L Ope]

Summary Court-Martial

A summary court-martial consists of one commissioned officer, and may try only enlisted personnel for noncapital offenses. The punishment which may be imposed depends on the grade of the accused.

In the case of enlisted members above the fourth pay grade, a summary court-martial may impose any punishment not forbidden by the law except death, dismissal , dishonorable or bad conduct discharge, confinement for more than 1 month, hard labor without confinement for more than 45 days, restriction to specified limits for more than 2 months, or forfeiture of more than two-thirds of 1 month’s pay.

In the case of all other enlisted members, the court-martial may also impose confinement for not more than one month and may reduce the accused to the lowest pay grade, E-1.

The accused has the absolute right to refuse trial by summary court-martial. The accused does not have the right to representation by an attorney. The accused does have the right to cross-examine witnesses, to call witnesses and produce evidence, and to testify or remain silent.

Special Court-Martial

A special court-martial consists of not less than three members and a military judge, or an accused may be tried by military judge alone upon request of the accused.

A special court-martial is often characterized as a misdemeanor court, and may try all persons subject to the UCMJ, including officers and midshipmen.

A special court-martial may impose any punishment authorized under R.C.M.1003 except death, dishonorable discharge, dismissal, confinement for more than 1 year, hard labor without confinement for more than 3 months, forfeiture of pay exceeding two-thirds pay per month, or any forfeiture of pay for more than 1 year. .

General Court-Martial

A general court-martial consists of not less than five members and a military judge, or an accused may be tried by military judge alone upon request of the accused.

A general court-martial is often characterized as a felony court, and may try all persons subject to the UCMJ, including officers and midshipmen.

A general court-martial may adjudge any punishment not prohibited by the UCMJ, including death when specifically authorized.

http://www.military.com/benefits/legal-matters/courts-martial

 

[Firethorn]

Straight from afpam36-2241v1:

6.19. Types of Courts-Martial:
6.19.1. Summary Court-Martial (SCM).
A SCM tries minor offenses. Instead of a military judge, an active duty commissioned officer is appointed
the SCM. In the Air Force, an accused facing trial by SCM is entitled to military defense counsel. The SCM
considers the evidence, including witness testimony, then makes a finding. If the finding is guilty, the SCM
considers any additional evidence before deciding an appropriate sentence. Only enlisted service members
may be tried by SCM. For Amn through SrA, sentences are subject to approximately the same limitations as
Article 15 punishment, except that 30 days of confinement at hard labor may be adjudged. For SSgt and
above, no confinement or hard labor without confinement may be adjudged. The law generally limits the
maximum punishments of the SCM to those listed in Table 6.3. A person may not be tried by a SCM over his
or her objection.
6.19.2. Special Court-Martial (SPCM).
A SPCM is the intermediate-level court in the military system. It usually consists of a military judge and a
panel (similar to a civilian jury) of three or more members. Enlisted accused may request that at least onethird
of the panel consist of enlisted members. In the Air Force, military judges are usually detailed for a
SPCM because a bad conduct discharge may not normally be allowed unless a military judge is detailed. The
proceedings include a trial counsel (prosecutor), defense counsel, the accused, and a court reporter to record
the proceedings. The accused may make an oral or written request for trial by military judge alone. If
approved by the military judge, the panel is excused. Any service member may be tried by a SPCM. A
sentence in a SPCM may include any punishment authorized by the UCMJ except death, dishonorable
discharge, dismissal (in the case of an officer), or confinement in excess of 1 year. Generally, it may impose
sentences listed in Table 6.3.
6.19.3. General Court-Martial (GCM).
A GCM tries the most serious offenses. Cases cannot be referred for trial by GCM without a thorough and
impartial investigation under Article 32, UCMJ. The GCM is composed of a military judge and at least a
five-member panel, which may include at least one-third enlisted members at the request of the enlisted
accused. It also includes a trial counsel, defense counsel, the accused, and a court reporter. The accused may
request trial by a military judge alone, except in a capital case (when a sentence to death may be adjudged).
The maximum authorized punishment this court-martial may impose is limited only by the maximum
allowable for the offenses under consideration, which may extend to death.

Note, SSgt = E5 in the USAF. Medical discharge is still an honorable discharge.

 

[57Coastie]

MEDDAC19 say,

It was always my understanding that after 30 days of AWOL or UA the charge became desertion.

You are absolutely correct in that after 30 days the "charge" often becomes desertion, but the "offense" does not necessarily become desertion.

The length of an unauthorized absence does not have anything to do with the offense of desertion, other than that it may be circumstantial evidence of an intention to remain away forever -- to never return to one's unit. I suspect that what causes this very common misunderstanding is that regulations of most, if not all, services require that after an absence of 30 days the AWOL member be listed as a deserter, and this triggers alerting civil LEOs to assist in apprehending the member. This procedure, BTW, accounts for the press reports one often sees that the "desertion rate" in the military is huge. In fact the numbers quoted generally refer to the numbers of AWOL members who have been AWOL for more than 30 days, rather than the number of members who are convicted of desertion.

Article 85 reads:

(a) Any member of the armed forces who—
(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or (3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States;
is guilty of desertion.
(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion. (c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

 

[gunsmith]

DD is no

"less then honorable" is probably just fine.

the RKBA is God given, if you are worried, keep your mouth shut about yer military service.

if you do not have a dd then do not volunteer any info on the character of yer service.

The Army of my youth is way different then the one today, some of my sgts were junkie swine who had been in so long and got so strung out that they were just plain evil. (60's 70's were a different time)

they robbed people/injected heroin and managed to get honorable on their dd214.

the fact that you are asking and not going black market shows that you are more honorable then they.

If you fail the "brady" then move to a free state and buy one FtF

 

[ChestyP]

After 30 days,

the command publishes a DD-553, in effect an arrest warrant, which formally declares the subject to be a deserter. The purpose of the DD-553 is to get it entered in the NCIC data base, just as civilian arrest warrants are posted in NCIC. A copy is ususally mailed to the chief law enforcement officer of the jurisdiction at the member's home of record as well.

When local law enforcement has contact with the subject via a traffic stop or other means, this gives them the authority to detain the individual for release to the military. After an individual is returned to military custody, the warrant is cancelled by publishing a DD-616.

Whether the individual is eventually charged with desertion or simply absent without leave depends on a number of factors. Desertion is more difficult to prove as one of the elements that must be proven is the intent to stay away permanently. AWOL convictions are simple: you were either there where you were supposed to be or you weren't. A simple thing like missing a muster can warrant an AWOL charge.

When a military member is detained on a DD-553, a fee is paid for his or her return to military custody. Back in the day, it was something like $25 if the military service had to pick the guy up at the local jail, and a larger fee if the local constabulary actually took him or her to the nearest military base. I can recall during Vietnam some local PDs making big money off of returning deserters. When I was Asst Shore Patrol Officer in San Diego in the early 70s, SDPD used to bring them over to the SD Shore Patrol station just across the street from the jail. The Navy (mostly) would send them a monthly check! I also got to make weekly trips to the Tijuana jail and La Mesa (Baja Californoa Norte) state prison to visit U.S. military inmates there. Pretty miserable crowd.

 

[mmike87]

Did they ever provide a reason for denying the emergency leave? In my experience, the commands in which I served were usually pretty good about granting emergency leave for immediate family. Some guys tried to get EL for their second cousin twice removed and stuff like that, for for a parent I would have thought it pretty easy.

Either you were irreplaceable or your command was run by a real a-hole. If you service record was otherwise excellent, I wonder if there is any sort of appeal process you could go through to get that reversed to at least a general discharge?

Really, there is a big difference between someone who is AWOL stateside to visit dying family and the guy that just wants to get some from his girl just one more time. A BCD implys a person of poor character, IMO. If what you describe is true, and your service record is otherwise spotless, it doesn't seem to me that you'd be a person of poor character worthy of a BCD.

 

[EOD Guy]

It was always my understanding that after 30 days of AWOL or UA the charge became desertion. That would be something I would never want on my record, and would probably be a dishonorable discharge, automatically, if not it should be.

After 30 days AWOl a unit can drop the service member from the roles as a deserter. This is an administrative action to relieve the unit of responsibility for the individual and has nothing to do with what charges might be made when the person is returned to military control.

Very few service members are charged with desertion since it can be a very hard charge to prove, especially when in the US.

 

[EricSr]

The main reason that I asked this question is because I am trying to get back in the USMC. I was informed that because of my military felony charge that I was unable to do so. I honestly can not stand sitting at home and going to work while watching our brothers perish. I have contacted a recruiter and a lawyer to present my petition to allow me the honor of serving alongside my brother in arm.

 

[F4GIB]

... or your command was run by a real a-hole.

When I was doing CM defense, my most successful trial tactic was to try the Squadron Commander for "failure to lead." I used it repeatedly. Almost none of them met the idealized CO in the minds of the court members. Flying a single seat airplane (or even an F4) for 15 years does not teach any management skills.

Here is the definitive reason why the BATF doesn't consider a BCD to make you a prohibited person. Since a Special CM cannot sentence anyone for anything to more than 6 months confinement, no Special CM conviction can possibly meet the 18 USC 922 definition of a "felony" - punishable by confinement for MORE than one year. They are all, in effect, gross misdemeanors.

 

[57Coastie]

EricSr says,

The main reason that I asked this question is because I am trying to get back in the USMC. I was informed that because of my military felony charge that I was unable to do so.

As an aside, this thread is a perfect example of the difficulty in attempting to answer a question when you do not know what the question really is.

The inartfully worded original question starting the thread was short and to the point,

Is a BCD for going AWOl or UA considered a felony?

If I cross my fingers and take the liberty of summarizing the answers suggested it might be "maybe -- it depends on why you are asking the question."

40 posts all over the ballpark later and we discover that the real question was: "Does a prior conviction by a Special Court-Martial and a sentence to a Bad Conduct Discharge disqualify one from again enlisting in the USMC?" Those attempting in good faith to answer the question made various and sundry assumptions about why the question was asked. This being a forum devoted to legal and legislative matters having to do with firearms the usual, and quite reasonable, assumption was that the questioner wondered whether this disqualified a person from owning a firearm. Indeed, one would not be unjustified in now concluding that the question lies outside the realm of this forum.

Now that we know what the real question is, it is perhaps most likely that the correct answer to the question is a matter of what is found in USMC or DOD regulations. From the latest explanation of why the question was asked, I do not yet know for sure whether those regs might speak in terms of "a BCD," or in terms of "a felony." Those terms have been all mixed up here and this confuses the issue.

In any event, it may be worth noting that in connection with the demand for more troops because of our Iraq adventure the media reports that recently DOD has relaxed its moral code for potential enlistees and is granting more moral waivers than in the recent past, and that those moral waivers include enlisting some felons. On the other hand, on the basis of my personal experience with the USMC it would surprise me, if not shock me, if that proud service were to grant a waiver and reenlist, during wartime, a man who had once departed his unit and his "brothers in arms," to use his lofty language, without permission.

Jim

 

[Aguila Blanca]

It might seem beneath your dignity, but you might investigate enlisting in the Army, and after putting in a few years with good reviews perhaps you could then do a transfer back to the USMC.

This might surprise you, but the Army guys use rifles very similar to the ones you had in the Corps.

 

[tegemu]

Have you tried calling a JAG office at a MCB.

 

[ChestyP]

GCMs can award a BCD as well as a DD. So while the BCD inn and of itself is not a firearm disqualifier, the other charges could be felonies or felony-equivalents.

Keep in mind too the firearm disqualifier is for conviction of a crime that "could carry a sentence of more than one year." The offense for which you were convicted may be a felony, but for reasons of it's own the court (or the convening authority) may have elected on a lesser punishment.

There are a lot of felons (by law) running around who never did a day of jail (or brig) time, but whose convictions were for a felony-level offense.