Is a Special Court Martial a Felony???

[CeLaw]

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...

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​

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

 

[badapple40]

You have the ability, under the Brady bill, to file an action in U.S. District Court against them in effect having the court order them to allow you handguns.

You are absolutely correct. The forum dictates the punishment. Prior to the 2002 MCM changes, the punishment was capped at 6 months from a SPCM (and now is capped at one year). More importantly, the service member has less rights at a SPCM, including less members in a court-martial, and does not have the right to counsel in SPCM's that are not authorized to adjudge a BCD. Your conviction of those charges at the SPCM did not leave you open to more than 1 year confinement.

I've cited several law review articles on the subject in the past. I suggest doing a search on here for my posts.

In short, I disagree with their analysis. I would appeal internally, exhaust your remedies with them, then file suit.

Where are you located? If in Ohio or Kentucky, I'll represent you for no charge on this one. In any event, if you are successful, a court can award you your attorney fees for bringing the matter, so looking into a private attorney may be adviseable. I'll provide assistance if you'd like.

This REALLY gets my goat because service members are routinely told when accepting plea deals to go to a SPCM that the plea is not considered a felony.

The feds are just wrong on this one.

 

[badapple40]

Lets see what cases are out there:

"[A] general court-martial is a 'court' within the meaning of 18 U.S.C. § 922(g)(1) [felon in possession] and a conviction, such as [defendant's] for which an individual is punishable for a term exceeding one year, amounts to a 'crime' for purposes of § 922(g)(1)." United States v. MacDonald, 992 F.2d 967, 970 (9th Cir. 1993).

United States v. MacDonald continues by stating:

This deference toward the military definition is consistent with the recent decision of Congress to criminalize possession of a firearm by one who has been dishonorably discharged from the armed forces, whether convicted of a crime punishable by more than a year of imprisonment or not, see Act of May 19, 1986, P.L. 99-308, § 102, 100 Stat. 451, and with the general principle that civilian courts must grant full faith and credit to the judgments of general courts-martial, see Grafton v. United States, 206 U.S. 333, 345, 51 L. Ed. 1084, 27 S. Ct. 749 (1907).

A special court-martial may not adjudge a dishonorable discharge. And a bad conduct discharge that may be awarded in a special court-martial is not considered by the ATF to be a bar to owning a firearm. 27 CFR 478.11

Look at the definition of indictment in 27 CFR 478.11 as well:

Indictment. Includes an indictment or information in any court, under which a crime punishable by imprisonment for a term exceeding 1 year (as defined in this section) may be prosecuted, or in military cases to any offense punishable by imprisonment for a term exceeding 1 year which has been referred to a general court-martial.

Numerous courts have little trouble recognizing that general court-martial convictions are bars to firearm ownership. United States v. ******ez, 122 F.3d 421 (7th Cir. general court-martial conviction for housebreaking a felony under Brady); United States v. Lee, 428 F.2d 917 (6th Cir. general court martial conviction for rape a felony under Brady).

Given that the ATF's own enabling regulations recognize similarities between indictments for felonies and the requirement for the case to be referred to a general court-martial, I would think it somewhat obvious that the intent was not to include special court-martials.

Here is an article on the subject:

http://caliber.ucpress.net/doi/abs/10.1525/fsr.2003.15.3.220

Even more telling, however, is the President's promulgation of the 2002 changes to the MCM and Congress's change to the UCMJ. 10 USCS § 819

Prior to 2001, the UCMJ limited court-martial confinement to 6 months.

Middendorf v. Henry, 425 U.S. 25 also explains court martial jurisdiction and limits.

 

[fozzy2]

This is indeed a common subject of confusion and disagreement. I'm not aware of any court rulings that are precisely on point. I think I can surmise what reasoning the FBI might be using, however.

Is a "special court martial conviction" a felony? Perhaps the more accurate question is "what will it count as under the law in question?" Many states, in attempting to rationalize things like sentencing enhancements (and related issues, like post-conviction rights), have basically decided that THEY will decide what will and will not count as a "felony", regardless of what (if anything) the original jurisdiction thought.

For example, in Alabama they will look at what you were found guilty of, then determine what category the crime could have been if it had been an *Alabama* court that had found you guilty. Even if the military could only give you 6 months at a special court martial, the state will look up the crime in its own criminal code and if *they* could have given you a year or more -- they will call it a felony. Now, that is the practice for sentence enhancements, but apparently such reasoning is being used for other post-conviction status determinations as well. Even when you are convicted of an offense "peculiar to the military", the state can then simply look for a "congruent felony" -- i.e. one that is close, and then apply that.

Of course, state law varies widely. I am tempted to think that the FBI is using a similar rationale -- ignoring your actual sentence and the limits on your sentencing court, and simply looking the offense up in a federal list to see what the maximum sentence would have been for a federal court of general jurisdiction.

One can actually get into very deep discussions of "full faith and credit" and related issues, but I am not aware of a controlling precedent. I would have expected cases of this nature to have hit the appeals courts already (gun owners have great NGO support), maybe I've just overlooked them.
If the FBI gives you an answer, please post it.

 

[SHORTY LONG]

Celaw "firearms"

08 FEB 06

Respectfully CELAW, what I do know is this: On the afternoon of September 11, 2001 I contacted ATF and gave them full disclosure of myself; and asked them that if i was on there crap list to please remove me. Moreover, I also spoke with a supervisor and inquried about obtaining a "firearms" permit license and was clearly told that because I have a BCD from a SPCM that I was not eligible in obtaining such! Hope this helps. Respectfully, Shorty

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...

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​

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

 

[CeLaw]

Ah, a BCD has nothing to do with it. A dishonorable certainly does, but not a BCD. Ask them where in the GCA (the gun control act of 1968) it says that a BCD is a disqualifier. I would recommend asking a pawn shop to run your permit to see if it comes back with a hit. Please be sure to tell them you have no intent to posses a firearm! If it does, you can then submit your fingerprints to them. You will likely get the same information back that I did. One reason I posted a transcript of my record is so people can see what a military criminal record looks like. It sounds like you called up and talked to some clerk on the end of the phone and they simply erred on the side of caution. Unless you gave them your SSN & DOB, then they didn’t know who you were and didn’t check your record. I checked my email, but didn’t see anything . Check your PM…

Thanks, CeLaw


PS> please use the reply instead if quote. It keeps the thread shorter