listed as a NCIC Felony or Misdemeanor?

[bukowski]

What is the name of your state (only U.S. law)? Ohio

In 1990 I pleaded guilty of receiving stolen merchandise (in excess of $100) in a special court-martial. I was sentenced to 30 in prison (Germany & then transferred to Ft. Knox), and reduction from E-3 to E-1. I received a general discharge (under honorable), that was subsequent, but not mandated by the court martial.

It is my understanding that a special court-martial during that time could only impose a sentence of up to 6 months; and therefore, since the maximum possible sentence is less that 1 year it should not be considered a felony.

I was just “delayed” for a NCIC background check (gun purchase).

Can anyone tell me with certainty if a special court-martial convection is a felony or misdemeanor?
Thanks!

 

[xylene]

What, panic buying an AR?

Delay status means EXACTLY that.

Instant check does not mean instant decision.

You need to wait for the determination before you get your gun rights up in a bunch.

If denied, hire a gun law specialist attorney. Please be patient.

 

[bukowski]

Thanks, you are right of course, I guess that I just have to wait.

But, I’m very concerned about the special court-martial conviction being interpreted / reported as a felony. In all honesty, I can live a full life without purchasing a handgun (I was not trying to purchase a “modern sporting rifle” as they call them at the gun shop). I’m far more concerned with a NCIC check returning a felony with regard to future employment background checks. Would greatly appreciate any information on how UCMJ convections in a special court-martial are reported / interpreted with respect to being a felony or misdemeanor. From my research, UCMJ does not make a distinction between the two, but I have not been able to determine how the special court-martial convictions are interpreted.

Any information would be greatly appreciated.

Thanks!

 

[xylene]

1. Have you had a professional background check run on yourself?

2. Your concerns are sensible, but don't panic.

There is a bevvy of info on this online, but given your conviction was 22 years ago, this may be a case by case matter. Answer job applications truthfully, but this matter was long ago and you can see why there is a sensitivity on a firearms app in today's climate.

The ATF is examining all firearm applications very closely, and the web traffic confirms that.

 

[swalsh411]

FYI, private rifle sales between two Ohio citizens are legal and do not require a visit to an FFL or a background check.

 

[bukowski]

After further research…..I’m really confused!

In 1990, I plead guilty in a Special Court-martial to Article 134: receiving stolen merchandise in excess of $100

From the 1984 MCM:

e. Maximum punishment. Stolen property, knowingly receiving, buying, or concealing.
(1) Of a value of $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
(2) Of a value of more than $100.00.Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

So, I was found guilty of a crime that had a maximum punishment of 3 years (only available under a general court martial), but the special count-martial only had the authority to sentence me to a maximum of 6 months.

Is the civilian felony/misdemeanor designation a result of the maximum punishment for the offense, or the maximum punishment available to the special court martial? Obviously, if it is the former, I have a felony conviction, and if it is the latter I should have a misdemeanor conviction?

I have done an online background check on myself, it came back with no criminal history, but I don’t have much faith in a $20 online check. I plan to have a NCIC check done on myself through the FBI, will it clearly indicate if this offense is considered a felony? Are all items that show-up on a NCIC record felonies?

Thanks!

 

[umkemesic]

What is the name of your state (only U.S. law)? Ohio

In 1990 I pleaded guilty of receiving stolen merchandise (in excess of $100) in a special court-martial. I was sentenced to 30 in prison (Germany & then transferred to Ft. Knox), and reduction from E-3 to E-1. I received a general discharge (under honorable), that was subsequent, but not mandated by the court martial.

It is my understanding that a special court-martial during that time could only impose a sentence of up to 6 months; and therefore, since the maximum possible sentence is less that 1 year it should not be considered a felony.

I was just “delayed” for a NCIC background check (gun purchase).

Can anyone tell me with certainty if a special court-martial convection is a felony or misdemeanor?
Thanks!

I just wrote a response a few minutes ago to a similar query.

An individual I knew was given a GCM + 8 months + BCD for Military Larceny and violation of a Federal Lawsuit.

He applied for his FOID card and received a delay because the State needed to hear back from the FBI. He was cleared.

Not sure how it's going to go with you.

They do tell you if it's under a year it's not a felony, etc. But I can tell you that's hogwash. The base investigators inputs it in NCIC and its up to the States how it is interpreted. Also some military offenses do not transfer no matter what (i.e. Adultery)

In other words you can have your gun rights taken away from the CM in one State, and another they might not care. Nothing in the FBI's system will say "Felony" for a CM. Ultimately it is the Agents on the base responsible for inputing the conviction in NCIS.

I would request a copy of the records from the FBI - many times the base investigators screw up imputing stuff in there.

 

[FlyingRon]

The definition is crime PUNISHABLE by more than a year. If you could have gotten confinement for three years, it is disqualifying.
It matters not what you actually received.

 

[umkemesic]

The definition is crime PUNISHABLE by more than a year. If you could have gotten confinement for three years, it is disqualifying.
It matters not what you actually received.

As I stated in the other post I personally saw a man with a GCM allowed to obtain a gun.

18 USC § 922(d)(1) Does not apply to Court-Martials as I have outlined in the other post because:

(1) There are no indictments in a CM

(2) Since most crimes in the UCMJ are technically punishable for a year or more it is unreasonable that a CM by itself would deprive someone of their gun ownership rights.

If that was Congress's intent they would not have made a seperate category for CM convictions resulting in a DD.

 

[FlyingRon]

(d) 1 is NOT the operative section. (g) (1) is and the courts have upheld that the word "courts" in that section include GCMs.

 

[umkemesic]

(d) 1 is NOT the operative section. (g) (1) is and the courts have upheld that the word "courts" in that section include GCMs.

What case is this? Well i'll tell you what, I'm right - because I have proof, so I'll make a friendly wager with you on the other post.

 

[bukowski]

I’m now fairly confidant that a Special Court Martial should NOT be interpreted as a felony conviction since the maximum punishment is under the 1 year threshold. I don’t know if it is appropriate to link in this forum, but you can do a search for this:


Stephen Halbrook

BATFE decides special-court martial conviction does not give rise to firearms disability under 18 U.S.C. § 922(g)(1)

After reading this material, I was ready to take the next step, and appeal a firearm disability with the ATF. However, I received the “proceed” after two days of waiting. Further, I purchased a second firearm a few weeks later, and received the “proceed” instantly.