Court Martial long term problems

[jgh23]

What is the name of your state? Alabama.

I was an Air Force Officer and was court martialed in 1990. The crime was fraternization with an enlisted women. We were stationed in Canada at the time. Now, I find that I cannot purchase a handgun or rifle. In Alabama, fraternizing is not a crime, so I am not guilty of anything. I can vote and have all other rights one normally has. I have been issued a concealed carry permit pursuant to a background check with no problem due to the fact that the background check only checks for criminal backgrounds. I find there is no remedy for my situation other than a Presidential pardon perhaps. There was once an office run by the ATF that dealt with restoration of rights but it has remained unfunded and unmanned since the Reagan era. The time frame has elapsed for appeling to the Board of Military Records Corrections and I believe a case was heard by SCOTUS that said that Federal Judges in individual states could not restore the right to own a firearm, once that right was taken away. Does anyone out there have a solution to my problem of not having firearms ownership rights?What is the name of your state?

 

[SHORTY LONG]

As a former Officer you were Federally convicted for the Federal crime of fraternization,
and it is either a federal misdemeanor or a full blown federal conviction, thus Federal
Law trumps State Law.

At this time, unless you can amount an upheaval defense for the Board of Military
Records Corrections, then, the only avenue for possible relief would be what you posted, a
"Presidential Pardon."

However, I noticed you did not mention the DRB [yes, 15 years from the date
of your discharge] but it may also be an avenue to explore.

Lastly, why have you waited so long to try and rectify this federal conviction?

 

[Shay-Pari'e]

Shorty, what USAFB is in Canada?

 

[SHORTY LONG]

Shorty, what USAFB is in Canada?

Good catch Shay. Maybe he and her were stationed at some extended base or facility.

 

[PJ Weber]

Could have be a liaison position, or Joint Duty. There's another name it but I cannot recall it

 

[fozzy2]

In the crypto community we used to have "PEP" (personnel exchange program) billets with Canada, the UK, and Australia. I knew a few people who had done tours at such wonderful places as CFS Alert (the world's northernmost permanently inhabited location). No doubt they applied with visions of Sydney, Australia. That's the military for ya

 

[Shay-Pari'e]

Well, all I know is the guy seems to think Alabama has no problem, yet being an officer he should have known this is a Military crime, not a state pacific crime.

 

[ElvisG]

I'm just curious (I've never been arrested) but once you receive a federal felony that is nation wide not just a state wide felony? In other words, that felony follows you no matter what state you live in.

 

[fozzy2]

IIRC,the federal statute which prohibits persons "convicted of certain crimes" from possessing a firearm includes anyone who has been convicted of a crime "which could be punished by more than one year imprisonment". That is the general definition of what a felony is (a crime punishable by more than a year). This federal law applies everywhere in the U.S.

Some states, however, have different language in their laws. They might say that person must be convicted of a a crime "which would be a felony in this state", or something to that effect. In other words, they compare what you've done to *their own* legal code and decide whether it was a felony. Now, "fraternization" is not a crime in any state that I"m aware of. It is what is known as a "strictly military" offense. Therefore, a state could look at that offense and say that it 'doesn't count' against you as far as applying for a concealed weapon permit. BUT, since it was "punishable by over one year in prison" the FEDERAL statute will still prohibit you from possessing a firearm.

It is theoretically possible to legally possess a gun according to state law, and still illegally possess it according to federal law. The state may not prosecute you, but the Feds still can. Sort of like the arguments with the state of California over medical marijuana ---the state can decline to make it a crime, but the Feds can still convict you for it. And you'd better belive they will.

Yet another complicaiton of our "state/federal" system, particularly now that the Federal government is getting involved in virtually every facet of governance. Indeed, these days, many "state" crimes can be "picked up" and tried by the Feds -- even if the state doesn't want it prosecuted. Just such case locally, a really pathetic case of a felon in possession where the state agreed the circumstances warranted no prosecution and dropped the felony charge in return for a plea to a misdemeanor. A young/eager federal prosecutor, however, no doubt smelling an easy conviction, is now planning to charge under federal statutes. It is just more hoops to jump through for any defendant.

 

[mlane58]

Shorty, what USAFB is in Canada?

Most likely it was Goose Air Base, Labrador which is in Canada.

 

[badapple40]

For the original poster:

what was the forum (general or SPCM)?

what was the exact charge (I'm guessing Article 133/4, but plz confirm)?

how did you plead?

was there a PTA and what were the terms of the PTA?

trial by members or military judge?

and what was the adjudged sentence?

I'm trying to figure out whether this is a disqualifying crime under the federal law. If it is, then your only recourse will be a presidential pardon. But it might not be.

 

[jgh23]

Sorry it took so long to reply. I was away from the computer for awhile. Thanks for all the replies. To clear up some of the questions: It was North Bay Ontario. We had an American Support Squadropn there as part of NORAD/NATO.

Fuzzy, this has less to do with the "felony punishable by more than a year" than it has to do with the wording on the 4473 that specifically states that you may not own/buy a firearm if you have ever recieved a dishonorable discharge.

Shay, I'm well aware that this was a Military Crime. ( I was in the military, remember?) However; some states will not allow you to vote, hold public office, recieve federal college loans, perform jury duty, etc., if yo have a felony conviction. I merely checked with the AG in my state to make sure I wasn't on some kind of felon list that prohibited me from voting etc. The AG laughed at me and said if what I did was a crime, most of the politicians and military officers would be in jail along with Clinton. ( Wonder if he can buy a gun?)

Badapple. GCM, PTA was a naked dismissal,( no fine-no jail time) trial by judge and it was a 134 violation. Judge went along with the PTA. Sentence was ust a dismissal. For an Officer this is tantamount to a DD.

 

[badapple40]

You have two problems with the conviction:

First, Title 18 U.S.C., §§ 922 (g) and has two provisions that are applicable:

(g)(1)who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year

(g)(6)who has been discharged from the Armed Forces under dishonorable conditions.

The ATF has interpreted "dishonorably discharged" to include dismissals. 27 C.F.R. 478.11

While you could argue that the crime in question was not punishable by more than one year imprisonment because of the PTA (an untested argument in the context of a military conviction), the dismissal is certainly a disqualifier.

Therefore, the only avenue of relief is, as you've already mentioned, the presidential pardon. Given the nature of the crime, the age of the offense, and I'll assume an otherwise productive life, I'd say you have a reasonable chance at a pardon. Keep in mind that the pardon process is a long one, but you should begin ASAP so as to perhaps be on the list by the end of the year (typically presidents grant quite a few pardons on their way out the door).