Is a special court martial before 2002 a felony?

[gunquestion]

Let me start by saying monday I will be contacting a lawyer but I wanted to see if anyone had a quick answer.

10 years ago I was convicted by a special court martial for larceny. I was told by my military lawyer that because the maximum confinement allowed with a special court martial was 6 months (it's now a year as of 2002) then civilian laws would consider my crime a misdemeanor. Well, I went to purchase my first firearm last week and was to my surprise denied. When I called the Oregon state police they said that since the maximum punishment for my crime was more than a year confinement that I was considered a felon. Had I been sent to a general court martial or a civilian court that would be true but the maximum punishment allowed was 6 months confinement and a bad conduct discharge. Does anyone have a clue on how my legal fight will go. And in case anyone is wondering, the larceny was a stupid prank done when I was young and I have not been in trouble since.

 

[Liberal Gun Nut]

Surely the bad conduct discharge is the problem here? The 4473 asksif you've been discharged under dishonorable conditions: http://www.atf.gov/forms/4473/index.htm

 

[Futuristic]

Liberal Gun Nut wrote:

Surely the bad conduct discharge is the problem here? The 4473 asksif you've been discharged under dishonorable conditions: http://www.atf.gov/forms/4473/index.htm

The BCD is a form of Other Than Honorable Discharge, it is NOT a Dishonorable Discharge. Essentially the analogy would be that if a Dishonorable Discharge is a Felony Conviction (it essentially is) then a BCD is a Misdemeanor conviction (pretty close actually).

I am unaware of how the Special Court Martial Sentencing Limitations might be perceived by State Law, but a Lawyer should be able to sort this out quickly.

Either the State is mistakenly applying an incorrect maximum term of confinement, or they are not. There's not a lot of wiggle room.

Supposition Mode: It seems likely that the maximum sentence for the Larceny charge might have been greater than one year, BUT a Special Court Martial (at that time) could only sentence to 6 months confinement. This distinction might not be fully addressed in State Laws. In point of fact, there might not be any case law on point for this question.

Futuristic

 

[spartacus2002]

I do not know of any case law, but I seem to remember the felony v misdemeanor status being based on the max incarceration for the crime regardless of which level of court-martial the accused was prosecuted in.

 

[57Coastie]

Futuristic and Spartacus have, I think, put their fingers on the real issues here.

First, it must be recognized that in this case the question is framed under the law of the state of Oregon. That is, is the state official who made the determination incorrect in considering this larceny conviction by a special court-martial to be or to have been a felony? "Felony" today has no common definition amongst all the states of the union. The old common law definition inherited from the UK has now been tampered with by the legislatures and/or courts in probably all the states. So IMHO we are left with a question of state law -- in this case Oregon law.

This is not necessarily an easy question to answer in many, if not all, states. E.g., does the definition of "felony" in a particular state go to the inherent nature of the offense rather than the maximum punishment a particular court might adjudge? Does it go to the maximum punishment which might have been adjudged by a court having broader sentencing power even though the court in which an accused is convicted is limited in its sentencing power? Would either of these processes fail to pass judicial/constitutional muster?

There are many subquestions here. The questioner is doing the right thing when he says he will be contacting a lawyer. I would hope this is not just any lawyer, but rather is one intimately familiar with the criminal law of the state of Oregon.

While it is water over the dam in this case, others who might get advice like this from a JAG lawyer should take care. If in fact a military lawyer gave advice which suggested that there is a common answer across the board to this question I would suggest that he stepped beyond his pay grade, unless he happened to be a lawyer who was at one and the same time intimately familiar with the criminal law of the state of Oregon and a JAG lawyer.

 

[Henry Bowman]

Look for a criminal defense lawyer in private practice in your state who is an ex-JAG officer. They will likely know the correct answer right away.

 

[Firethorn]

From my understandings, it's a General court marshal for any felony proceedings. Special court marshals are effectivly 'misdemeanor court', with generals being 'felony court', though they'll handle anything if necessary.

Article 15's are plea bargain deals. The member does not have to accept, but if he or she refuses, it will then go on to a court marshal.

But yeah, get a lawyer.

 

[57Coastie]

From my understandings, it's a General court marshal for any felony proceedings. Special court marshals are effectivly 'misdemeanor court', with generals being 'felony court', though they'll handle anything if necessary.

Article 15's are plea bargain deals. The member does not have to accept, but if he or she refuses, it will then go on to a court marshal.

With respect, Firethorn, this is very oversimplified and misleading, if not just plain wrong. A misunderstanding like this is exactly the kind of thing that probably led to the question which started this thread.

But I cannot fault you on this:

But yeah, get a lawyer.

 

[Old Dog]

Futuristic stated that

The BCD is a form of Other Than Honorable Discharge, it is NOT a Dishonorable Discharge. Essentially the analogy would be that if a Dishonorable Discharge is a Felony Conviction (it essentially is) then a BCD is a Misdemeanor conviction (pretty close actually).

No, this is wrong. A BCD is classified as a "punitive discharge" -- along with the Undesirable and Dishonorable discharges. An "Other than Honorable" discharge is classified as a "general discharge." Big difference here. OTHs are administrative discharges, whereas BCDs result from CM proceedings.

 

[Futuristic]

Mea Culpa, but with a Reason!

Old Dog wrote:

Futuristic stated that
Quote:
The BCD is a form of Other Than Honorable Discharge, it is NOT a Dishonorable Discharge. Essentially the analogy would be that if a Dishonorable Discharge is a Felony Conviction (it essentially is) then a BCD is a Misdemeanor conviction (pretty close actually).
No, this is wrong. A BCD is classified as a "punitive discharge" -- along with the Undesirable and Dishonorable discharges. An "Other than Honorable" discharge is classified as a "general discharge." Big difference here. OTHs are administrative discharges, whereas BCDs result from CM proceedings.

I knew as soon as I wrote that bit that someone would pick on it. I was trying not to get too deep into the Military scheme of things, since the problem here is with Oregon State Law.

The reason I wrote that a BCD was a form of OTH Discharge, when it is definitely NOT a OTH under Military Law, is that some State Laws regard it that way. Many of the State Legislatures, in their Infinite Wisdom, lumped all Discharges into 3 categories (in some States, more in others) which are typically Honorable, OTH, and Dishonorable. The OTH category is a catchall that under many State Laws includes General, OTH, BCD, Admin, etc. Discharges, basically anything that isn't an Honorable or Dishonorable. Most State Laws don't even have any recognition of the term Punitive Discharge, only Dishonorable Discharge.

Of course, most of the time the States don't need to take much notice of anything except a DD, which really counts as a Felony conviction in 99.9% of cases, and gets the ex-Service Member all the same treatments (registration of residence, loss of voting privileges, etc.) of any other Felon.

It doesn't help that the Military has changed the Discharge types slightly over time, thus getting them out of sync with State Laws passed many years ago.

Futuristic

 

[Dorryn]

I know a guy who had no trouble getting a CCW pistol permit despite his OTH discharge... and from what I understand, he had a summary courts martial for assault. He always said that while punitive, anything worse than an OTH was considered a felony charge in every state...

Maybe he didnt know what he was talking about, though.

 

[spartacus2002]

Summary court-martial is not a criminal conviction. It is merely a high-powered form of nonjudicial punishment.

 

[57Coastie]

Spartacus says,

Summary court-martial is not a criminal conviction. It is merely a high-powered form of nonjudicial punishment.

With respect, Spartacus, I must differ with you on this. A summary court-martial is a criminal court established by the Congress which can try persons subject to its jurisdiction for a charge of any noncapital offense. Of course an accused may decline to be tried by a summary court-martial and choose instead to be tried before a court having substantially more sentencing power.

Once again I must strongly recommend that any military personnel, or ex-military personnel, having a question about military criminal law seek advice from a knowledgeable lawyer, either military or civilian, and that all of us should be very cautious in taking any legal advice of any kind from any internet forum unless you know that the source is reliable.

We might, as just a matter of general interest, take another look at your thoughtful statement in an earlier post:

I do not know of any case law, but I seem to remember the felony v misdemeanor status being based on the max incarceration for the crime regardless of which level of court-martial the accused was prosecuted in.

If your recollection here is correct, and I offer no opinon on that, we might ask ourselves about a hypothetical situation which I can assure you happens not infrequently.

Private Jones is accused of having stolen $5.00 from a member of his platoon. He is charged with larceny, in violation of Article 121, UCMJ. Since this was Private Jones's first offense and he has been a good soldier up to this point, and the theft of which he is accused is of such a small amount, his commander decides that leniency is in order, and he refers the case to trial by summary court-martial.

Knowing that if he declines trial by summary court-martial his charge can be referred to trial by a general court-martial, which could sentence him to a dishonorable discharge and many years confinement, Private Jones, who also is noted for having common sense, decides to accept trial by summary court-martial. Private Jones is keenly aware that a summary court-martial is empowered to sentence him to no more than 30 days confinement and cannot adjudge a discharge of any nature.

Tried before Captain Smith, the duly appointed summary court-martial, Private Jones is convicted and sentenced to 15 days in the stockade.

Could one or more states of the union later correctly conclude that Private Jones was convicted of a felony?

Jim

 

[sacp81170a]

Not trying to get off topic here, but does anyone remember the slang for a BCD being "Big Chicken Dinner"? Hadda ask.

(At least, that's what I think of every time I see "BCD".)

 

[jondar]

Gunquestion - Maybe I didn't read your post carefully enough but I didn't infer that you had received a bad conduct discharge. I also received a Special Courts Martial. It didn't follow me into civilian life, and I have bought many guns without a speck of trouble.

 

[spartacus2002]

57Coastie,

a summary court-martial conviction generally does not qualify as a criminal conviction like a special or general court-martial. For example, it does not count as a qualifying conviction for Lautenberg Amendment purposes.

 

[57Coastie]

Spartacus says,

For example, it (a summary court-martial conviction) does not count as a qualifying conviction for Lautenberg Amendment purposes.

You are quite correct to the extent that Army regulations say:

Summary court-martial convictions, non-judicial punishment under Article 15, UCMJ, and deferred prosecutions (or similar alternative dispositions) in civilian court do not constitute qualifying convictions within the meaning of the Lautenberg Amendment

(For those not that familiar with it, the Lautenberg Amendment to the Gun Control Act of 1968, effective 30 September 1996, makes it a felony for those convicted of misdemeanor crimes of domestic violence to ship, transport, possess, or receive firearms or ammunition. The Amendment also makes it a felony to transfer a firearm or ammunition to an individual known, or reasonably believed, to have such a conviction).

The fact that the Army chooses to not consider a conviction of an offense of domestic violence by a summary court-martial as "disqualifying" for enlistment, does not at all change whether or not a summary court-martial conviction is a criminal conviction of record. Nowadays, to the distress of many, the moral waiver authority of recruiters has grown by leaps and bounds.

We are not quibbling over an unimportant question. In my just prior post where I postulated the situation Private Jones found himself in may well be exactly the situation the person asking the question which began this thread finds himself in.

After all, it appears from the question starting this that the state of Oregon considers a conviction of larceny by a special court-martial which could have sentenced the accused to confinement for no more than six months to be a felony. What is the legal significance, if any, of a valid conviction of larceny by a summary court-martial which could have sentenced the accused to confinement for no more than one month?

I will not venture to answer the original question other than to again suggest that the questioner seek competent legal advice, but I do suggest that perhaps I hint at an avenue to pursue when he attempts to identify the specifics of his problem. One cannot solve a problem until he identifies just what the problem is.

With respect,

Jim

 

[tanksoldier]

Ding, ding, ding...

The limitations imposed by the type of court martial don't change the maximum possible punishment for the crime, or the "type" of crime. Put another way, the limitations on the COURT do not reflect the severity of the crime. You can be tried for insubordination by your commander thru NJP, or by a summary court.... or by a special or general court The authority of the various courts martial to punish is greater than your commander's... but the crime is the same.

If you were tried for a really serious crime by a special court, murder or arson for example, they would still be felonies.

A BCD is often considered WORSE than a dishonorable, though any benefits earned by a previous term of service are not lost as they are with a dishonorable. Usually to receive a BCD you have to have a pattern of conduct incompatable with good order and discipline... usually a single incident won't do it, unless it's a big one.

I've seen drug dealers get away with six months, less time served, and a general discharge. Whatever "prank" you pulled must have been a doozy.

I do not know of any case law, but I seem to remember the felony v misdemeanor status being based on the max incarceration for the crime regardless of which level of court-martial the accused was prosecuted in.

 

[eoR]

I've seen drug dealers get away with six months, less time served, and a general discharge. Whatever "prank" you pulled must have been a doozy.

Double check gunquestion's post; he/she didn't say what the actual punishment received was. Liberal Gun Nut brought up the BCD as a possible reason for the denial.

 

[tanksoldier]

I was refering mostly to the BCD... I've seen drug dealers get a general discharge after serving six months less time served.

I've also seen one guy convicted of 200 larceny counts (part of a theft ring in the barracks) get a BCD... while those convicted of two or three larcenies weren't even discharged at all.

I stand by my statement, if you got a BCD for ONE larceny it must have been a really good one.

Double check gunquestion's post; he/she didn't say what the actual punishment received was. Liberal Gun Nut brought up the BCD as a possible reason for the denial.

 

[57Coastie]

tanksoldier says

I've also seen one guy convicted of 200 larceny counts (part of a theft ring in the barracks) get a BCD... while those convicted of two or three larcenies weren't even discharged at all.

Haven't we all. I do think that your post points up the fact that at least in my day a barracks thief, or in my service, someone who stole from a shipmate, was generally considered beyond saving. This was the worst of the worst.

I am of course not suggesting that this has anything to do with the original questioner. You just took the old man on a nostalgia trip.

Cheers,

Jim