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Felony or Misdemeanor???

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John1865

Junior Member
Currently living in San Antonio Texas.

Back in 1988, I was convicted during a special court martial of larceny and obstruction. I received a sentence of 5-months confinement, reduction to E-4 and a fine. I wasn't given a BCD, learned a tough lesson, and went on to serve another 15-years retiring honorably in 2003 at the rank of SMSgt/E-8.

Anyway, I'm considering applying for a Texas Concealed Handgun License (CHL). For obvious reasons, felony convictions disqualify one from receiving a CHL in Texas. However, misdemeanor convictions greater than 5-years old do not disqualify an individual from receiving a Texas CHL; unless they are for domestic violence.

I would like some feedback on whether you think Texas will equate my conviction to a felony or misdemeanor???

John
 


S

SHORTY LONG

Senior Member
John1865 said:
Currently living in San Antonio Texas.

Back in 1988, I was convicted during a special court martial of larceny and obstruction. I received a sentence of 5-months confinement, reduction to E-4 and a fine. I wasn't given a BCD, learned a tough lesson, and went on to serve another 15-years retiring honorably in 2003 at the rank of SMSgt/E-8.

Anyway, I'm considering applying for a Texas Concealed Handgun License (CHL). For obvious reasons, felony convictions disqualify one from receiving a CHL in Texas. However, misdemeanor convictions greater than 5-years old do not disqualify an individual from receiving a Texas CHL; unless they are for domestic violence.

I would like some feedback on whether you think Texas will equate my conviction to a felony or misdemeanor???

John
Click to expand...
Senior Master SGT., one thing for sure is that a Court Martial Conviction is a [Federal Conviction]!

Given now that you retired Honorably could help; and it would be worthwhile to apply for
your License and see what happens.

Also, this is a Federal matter, and the last I was aware was the "ATF" is a federal agency
that issue said License, so whither the State has a role in this, I am not for sure!

If by chance you are denied, then, you should without a doubt appeal it.

Best of Luck and do not give up! Congrats upon your Honorable retirement.
 
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F

fozzy2

Member
The short answer is "probably not." Traditionally, there were limits on the punishment that could be imposed by a SPCM that resulted in most states categorizing their convictions as "misdemeanors". A few years ago the military updated the punishments a SPCM could impose, so now there is much debate over whether or not a SPCM should be called a felony. IIRC, some states do and some states don't.

Legally, each state gets to decide itself how to 'categorize' your offense. There is no strict definition of the division between misdemeanor and felony (though traditionally anything that might bring over 1 year in jail became a felony). The state can also look at the offense you were convicted of and decide "If you did that here/now we would consider it a felony", and call it a felony regardless of what the military/feds think about it. This identifies one of the great conundrums of federalism/"states rights". How you are treated depends largely on where you are.

Having said all that, most states will consider that SPCM a misdemeanor with no fuss. But there is no guarantee, sometimes it will be on a 'case by case' basis.
 
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ElvisG

Member
Just for my personal knowledge, is a "BCD" a Bad Conduct Discharge? If so, how did you get to join back in?
 
Just Blue

Just Blue

Senior Member
ElvisG said:
Just for my personal knowledge, is a "BCD" a Bad Conduct Discharge? If so, how did you get to join back in?
Click to expand...


I received a sentence of 5-months confinement, reduction to E-4 and a fine. I wasn't given a BCD, learned a tough lesson, and went on to serve another 15-years retiring honorably in 2003 at the rank of SMSgt/E-8.
Click to expand...

;) ****************************
 
J

John1865

Junior Member
Response to ElvisG and Fozzy2

Elvis: Although I was convicted, the court martial did not give me a Bad Conduct Discharge (BCD). Therefore, I remained in the Air Force until I retired in 2003 with over 23-years.

Once my confinement was served I went back to my unit. Lucky for me, my commander had changed during this time. My new commander felt my crime (petty larceny) should've been dealt with using Article 15 proceedings vice a court martial. I learned a valuable lesson which changed my outlook on life, family, and career. From that point forward, I was a model airman - doing all my jobs in an outstanding manner, volunteering, and finishing a bachelor’s degree.

Over the years, people forgot, and this record became "buried" below all my accomplishments. Contrary to what many folks might say, the military system is very fare. My career is testimony of this fact.

Fozzy2: You sound very knowledgeable and educated in military law. Do you, or have you served in the military, and if so, are you a military lawyer? I noticed you mentioned the punishments have changed for a SPCM, primarily the maximum confinement period was extended to 1-year - this occurred in 2002. With that said, I'm hoping that since the maximum confinement was only 6-months in 1988, this may weigh favorably in determining my conviction was more equal to a misdemeanor vice felony.

Compounding the difficulty of my situation, I destroyed all my court martial records following completion of my confinement - I wanted to forget! I have contacted and received a certified database printout of the court martial record from the Headquarters, Military Justice Division - specifically HQ AFLOA. Unfortunately, their database printout only shows that it was a SPCM, and the punishment imposed, i.e., 5-months confinement, reduction to E-4, and forfeiture of $500 per month. It doesn't show the criminal offense, i.e., larceny. All other hard-copy records were only maintained by the Air Force for 15-years and destroyed in 2003.

I see this as problematic. I have asked the Texas DPS, in writing, to conduct a preliminary review of my criminal record to determine if I’m qualified for a CHL under Texas law. However, I'm worried they will determine I'm not qualified. Then my only recourse would be to fight the issue in court.

On a final thought, there is case law to support my situation – Texas Department of Public Safety vs. RONALD J. SWIERSKI (2001) – NO. 2-00-022-CV. I don’t know if you want to read it, but the link is as follows: http://www.2ndcoa.courts.state.tx.us/case/opinions/ops2001/200022CV.pdf


Your thoughts?
John
 
S

SHORTY LONG

Senior Member
John1865, we had a Forum Member last year address the same situation!

His name is CELAW and I have not seen him in here for quite a while.
Also, I think Col. Badapple40 was helping him, which also, I have not
seen in here for quite sometime.

Hopefully, Fozzy2 can shed more light, and help!
 
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fozzy2

Member
No, I'm not a lawyer, and this post does not constitue "legal advice." I was in the military a while back.


To begin with, according to Texas law, it is a felony for purposes of gun licensing, if "At the time of application" the offense you were convicted of "Contains all the elements of an offense designated by a law of this state as a felony;"
V.T.C.A. Government Code sec. 411.172 (b)(1)(B)

A crime in Texas is a felony if it is "so designated by law, a death sentence, or punishable by confinement in a penitentiary."
V.T.C.A. Penal Code sec. 1.07

In Texas, a theft/larceny (assuming the elements are the same as the military charge) is "state jail" if the theft was worth at least $1,500 OR if a firearm was stolen.
V.T.C.A. Penal Code 31.03

In Texas, a "state jail" offense is a felony (in case there was any question).
V.T.C.A. Penal Code 12.04

Summary : As for the larceny, it would appear that if you stole under $1,500 and no firearms then it would not qualify as a felony. (note: there are quirks in the law, for example the rules are different for livestock. You weren't rustling, were you?) I'm not certain what the obstruction charge would come in as.

This is assuming they actually do the legwork. Usually, someone at the applicable agency is just reading off of a pre-prepared chart of common convictions. They may just see "SPCM" and say it doesn't count right there.
 
J

John1865

Junior Member
Thanks for all your responses...they are all very intelligent and thoughtful.

My larceny charge was for a hand-held multimeter valued at $120.00. The obstruction charge was asking a friend to lie about the investigation.

I found the Texas statute for theft valued under $500 statute to be a class B misdemeanor.

I hope they only make their decision on the SPCM and not the criminal offense, since the only AF record does not show the offense - only the SPCM conviction, confinement, reduction in grade, and fine. The HQ AF Military Justice Division only has a limited info in their database on Non-BCD SPCM's; if you can believe that.

I have sent off my fingerprint card to the FBI to see what they have on record, so far I have not heard back from them - 4 weeks.

I have bought several handguns and rifles over the years. Two in fact just recently. The sporting goods store ran the check and it came back clear. I was surprised to hear in the thread identified above where the person was denied the right to purchase because his SPCM was listed with the FBI.

What did you think of the case below???
Texas Department of Public Safety vs. RONALD J. SWIERSKI (2001) – NO. 2-00-022-CV.
http://www.2ndcoa.courts.state.tx.us/case/opinions/ops2001/200022CV.pdf
 
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badapple40

Senior Member
It is not a felony. There is ATF guidance out there on it and some case law. I wouldn't worry about it unless they make a big deal about it. I would also disclose the facts of the SPCM on the application so there are no allegations that you've hidden or not disclosed information.

Sorry gang: I got activated and TDY'd to an unpleasant place for a while, but am back now.
 
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