I know that this issue has been tossed around like the football next door, but seriously, does any one know where a rule or regulation is that states that a SPCM conviction is a misdemeanor? I have done extensive research and I am able to find quotes and a small bit of case law information, but nothing that comes right and says that a SPCM conviction is a misdemeanor.
To give some information, I was denied a firearms transfer by the FBI based on a SPCM conviction. I sent my finger prints to the FBI and received my record back. There is no denying the fact that the record return to me is my record. Plus finger prints don’t lie. The reason I was denied, according to the FBI...
There are many people that agree that a SPCM conviction is a misdemeanor and not a felony. But the denial by the FBI for my firearms transfer proves that the FBI thinks that a SPCM conviction is a felony. At least in my case. My question is: Has anyone else be denied a firearms transfer based on a SPCM conviction? If so, were they able to dispute the determination and if so, what was the result?
I want to write a letter to the FBI, not that they will listen, and point out all the indicators that make a SPCM a misdemeanor and thus not a disqualifier as contained in the Gun Control Act of 1968 (GCA). I would prefer to give them a solid piece of evidence, but…
I firmly believe there is no such documentation. I have read the MCM and only see brief mention of the words felony & Misdemeanor. And yes, I am fully aware of the fact that the military does not distinguish the difference between misdemeanors and felonies. I call it a “hands off” policy. And I am also aware of the military to civilian conversion, I call this one “passing the buck” I think it is morally wrong for people to get convicted of or plead guilty to crimes when they are not aware of how their convictions will be viewed in the civilian world. Especially considering (in the case of a SPCM) they are facing a max of six months confinement. Which, on its face, looks like a misdemeanor and smells like one too. It would be so much more right if the Military Justice System would get off their !@#$ and call it what it is: a misdemeanor or a felony!
The US Title Code states in TITLE 10 > Subtitle A > PART II > CHAPTER 47 > SUBCHAPTER VIII > § 856 Article 56) for the various offenses of the UCMJ, it always says under Maximum limits “The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense“. Click Here The theory is that because the limit of a Special Court Martial, prior to the 2002 change, was six months because the the President prescribed a six month limit on SPCMs, then the maximum confinement is six months for the offense(s) as charged. But it seems as if in my case, the FBI looks at is as if the charges against me could have been referred to a GCM. While that is true, I was not charged in nor did not plead guilty in a GCM. Is this fair? Or more correctly is there a way to change their mind? My intent is not to own a gun, but I firmly believe so long as the FBI continues to deny my firearm transfer, then I can not argue that I do not have a felony when seeking employment.
I would appreciate any feedback and I would really like to know if anyone else has been denied a firearm permit. I would think that at least at some point in legal history, someone (who was convicted in a SPCM) was charged with felony possession and was or was not found guilty because a SPCM conviction is or is not a felony, but to date, I have never found such a case law. Lastly, this is not legal advice, but I caution anyone that has been convicted at a SPCM and that is in possession of a firearm to properly dispose of it immediately. Felony possession is a serious “no questions asked” offense.
Thanks, CeLaw
To give some information, I was denied a firearms transfer by the FBI based on a SPCM conviction. I sent my finger prints to the FBI and received my record back. There is no denying the fact that the record return to me is my record. Plus finger prints don’t lie. The reason I was denied, according to the FBI...
I quote: "Your denial indicates that you have been matched with the following federally prohibitive criteria: Convicted of/under indictment for a crime punishable imprisonment for a term exceeding one year, whether or not sentence was imposed"
My rap sheet looked like this:
1-Arrested or Received 1998/10/12
Agency-US Naval Invest Serv
Charge 1-Damage Govt Prop
Charge 2-Larc Govt Prop
Court-
Charge-Damage Govt Prop
Sentence-
Special CRT Martial FG 90 DAS Confinement, Reduction in Grade, Forfeiture $400 per MO for 4 MOS, $1375 Fine
Charge-Larc
Sentence-
Combined w/#1
My rap sheet looked like this:
1-Arrested or Received 1998/10/12
Agency-US Naval Invest Serv
Charge 1-Damage Govt Prop
Charge 2-Larc Govt Prop
Court-
Charge-Damage Govt Prop
Sentence-
Special CRT Martial FG 90 DAS Confinement, Reduction in Grade, Forfeiture $400 per MO for 4 MOS, $1375 Fine
Charge-Larc
Sentence-
Combined w/#1
There are many people that agree that a SPCM conviction is a misdemeanor and not a felony. But the denial by the FBI for my firearms transfer proves that the FBI thinks that a SPCM conviction is a felony. At least in my case. My question is: Has anyone else be denied a firearms transfer based on a SPCM conviction? If so, were they able to dispute the determination and if so, what was the result?
I want to write a letter to the FBI, not that they will listen, and point out all the indicators that make a SPCM a misdemeanor and thus not a disqualifier as contained in the Gun Control Act of 1968 (GCA). I would prefer to give them a solid piece of evidence, but…
I firmly believe there is no such documentation. I have read the MCM and only see brief mention of the words felony & Misdemeanor. And yes, I am fully aware of the fact that the military does not distinguish the difference between misdemeanors and felonies. I call it a “hands off” policy. And I am also aware of the military to civilian conversion, I call this one “passing the buck” I think it is morally wrong for people to get convicted of or plead guilty to crimes when they are not aware of how their convictions will be viewed in the civilian world. Especially considering (in the case of a SPCM) they are facing a max of six months confinement. Which, on its face, looks like a misdemeanor and smells like one too. It would be so much more right if the Military Justice System would get off their !@#$ and call it what it is: a misdemeanor or a felony!
The US Title Code states in TITLE 10 > Subtitle A > PART II > CHAPTER 47 > SUBCHAPTER VIII > § 856 Article 56) for the various offenses of the UCMJ, it always says under Maximum limits “The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense“. Click Here The theory is that because the limit of a Special Court Martial, prior to the 2002 change, was six months because the the President prescribed a six month limit on SPCMs, then the maximum confinement is six months for the offense(s) as charged. But it seems as if in my case, the FBI looks at is as if the charges against me could have been referred to a GCM. While that is true, I was not charged in nor did not plead guilty in a GCM. Is this fair? Or more correctly is there a way to change their mind? My intent is not to own a gun, but I firmly believe so long as the FBI continues to deny my firearm transfer, then I can not argue that I do not have a felony when seeking employment.
I would appreciate any feedback and I would really like to know if anyone else has been denied a firearm permit. I would think that at least at some point in legal history, someone (who was convicted in a SPCM) was charged with felony possession and was or was not found guilty because a SPCM conviction is or is not a felony, but to date, I have never found such a case law. Lastly, this is not legal advice, but I caution anyone that has been convicted at a SPCM and that is in possession of a firearm to properly dispose of it immediately. Felony possession is a serious “no questions asked” offense.
Thanks, CeLaw