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Special court martial conviction keep you from buying a gun?

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waverider323

Junior Member
I want to go purchase a gun in colorado, my question is I was convicted in a special court martial last year, my sentence was a BCD and two months in county. When I go to purchase a firearm will that flag me and keep me from purchasing it for being a convicted felon or any other reason?
 


cyjeff

Senior Member
We have some experts on military law here. I am sure it will help them if you mention the nature of your conviction.
 

TigerD

Senior Member
No. You may not purchase a firearm.

Question 11g on the 4473 asks if you have been discharged from the military under dishonorable conditions.

A yes answer means you are a person who is prohibited from purchasing or receiving a firearm.

DC
 

umkemesic

Member
I want to go purchase a gun in colorado, my question is I was convicted in a special court martial last year, my sentence was a BCD and two months in county. When I go to purchase a firearm will that flag me and keep me from purchasing it for being a convicted felon or any other reason?
Depends. I knew a person who was given a GCM (General Court-Martial) and received time + the Big Chicken Diner. In Illinois he filed to get his FOID Card. He was flagged by the State who was waiting to hear from the FBI - but a few weeks later he was cleared.

His offense was Military Larceny and a violation of a Federal Statute.

Just fill out the paperwork - what's the worst they can tell you?

Also @debtcollector he said BCD which is different than a DD. Indeed a DD (Officer - dismissal) will get you banned from fire arm ownership. But a BCD is given for minor offenses and is almost exactly the same as Other Than Honorable.

Also what constitutes a "conviction" or "felony" is not always clear. A Summary Court-Martial is not entered into NCIC at all.

The other CM (Special nd General) depends on the offense charged (for example, the FBI will not record Adultry or Disobeying an Order with a matching civilan code) and whether CID/OSI/NCIS properly imputed the codes in.
 
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FlyingRon

Senior Member
Whether it is entered into NCIC (I suspect you mean this rather than NCIS) is iMMATERIAL to the legality of the situation.

If your CM found you guilty of a charge that is PUNISHABLE by over a year in confinement, whether you actually get any prison or not disqualifies you.
 

umkemesic

Member
Whether it is entered into NCIC (I suspect you mean this rather than NCIS) is iMMATERIAL to the legality of the situation.

If your CM found you guilty of a charge that is PUNISHABLE by over a year in confinement, whether you actually get any prison or not disqualifies you.
Yes that was a goof, I had acronym on the brain. Made the same error on the other post.

However, you are wrong.

You are wrong because I personally witnessed an individual get a FOID and firearm after his GCM of Larceny and a violation of a Federal statute.

And while this does not gaurantee anyone else getting similiar results, I will tell you that your interpetation of FOPA (18 U.S.C. § 922(d)(1) has no bearing on court-martials

http://www.guncite.com/journals/hardfopa.html#fn315

A court-martial that ends in a dishonorable discharge clearly puts the defendant within a prohibited category, but what of one that does result, or could have resulted, in incarceration for more than one year? At first glance, the defendant would seem a prohibited person by reason of his conviction "in any court." 18 U.S.C. § 922(d)(1) (1982). Yet a closer look suggests quite strongly that Congress intended the dishonorable discharge, and not conviction of an offense punishable by more than a year's imprisonment, to be the litmus test of arms ownership following a court-martial. First, the full description of the latter prohibition is a person who is "under indictment for, or has been convicted of" such an offense. "Indictment" is defined to include "information," 18 U.S.C. § 921(a)(14) (1982), but not the pendency of court-martial proceedings. Second, all court-martials involve offenses for which a term greater than one year may be imposed--the only statutory limit is that the incarceration "may not exceed such limits as the President may prescribe for that offense." 10 U.S.C. § 856 (1982). Because, at least prior to FOPA, the test was whether a person could have received more than one year--even if the court chose a sentencing scheme that ruled that out, see supra notes 305-08--all court-martials would qualify. (The President has in fact prescribed maximum terms for most offenses, but these maxima apply only to court-martials of enlisted men. Manual for Courts Martial, § 127 (Rev. ed. 1969) cited in 10 U.S.C.S. § 856 note (1982)). Thus, if Congress had understood a court-martial conviction to qualify as a conviction for purposes of this section, it need not have created a separate category for persons sentenced to a dishonorable discharge. It seems more likely that Congress did not intend prohibited person felon status to apply to persons convicted of, inter alia, behaving "with disrespect" to a superior, failing to obey a regulation, breach of the peace, use of "reproachful words," or of "disorders and neglects to the prejudice of good order." 18 U.S.C. §§ 889, 892, 917, 934 (1982).
 
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TigerD

Senior Member
or
18 USC § 922 (d) (6) - (g)(6)

And oh by the way - a BCD is under dishonorable conditions.

As are general OTH discharges in lieu of court marshal.


DC
 
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umkemesic

Member
or
18 USC § 922 (d) (6) - (g)(6)

And oh by the way - a BCD is under dishonorable conditions.

As are general OTH discharges in lieu of court marshal.


DC
No its not. There are no "conditions".


Where are you getting your information from. BCD is different then a Dishonorable Discharge. The UCMJ list BCDs to be given for MINOR offenses. You have no idea what you are talking about.
 

umkemesic

Member
How do you intend to get around (g)(1)?
I responded in the other thread, but since they are related I will confine my comments here.

You stated that there is some sort of case law for the presumption that court-martial is to be included in (g) (1). I'm not sure what case you are talking about. It is incedible to believe a drug use charge (which has no civilian equivalent since use is not criminalized) punishable by years in confinement would deprive a soldier of the right to bear arms. Or adultry, or Disrespect to an Officer.

There is of course the thousands who were CM and stayed in the military.


I am aware of United States v. Cossio 64 MJ at 256. The case of the GCM Larceny/CFAA violation.

And am aware of the foid card listed here:

http://www.flickr.com/photos/93378377@N03/8491424196/in/photostream


The proof is in the pudding.
 
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bukowski

Junior Member
Try searching 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)

I have a copy of the documents, if that will help you.
 
I handled a case like this in 2016. A Special Court-Martial conviction does NOT deprive an individual of the right to purchase a weapon, ammo, etc. The DoD specifically requested this exemption since the maximum punishment the court is authorized to adjudge is a BCD and one year (at the time of the passage of the bill, only six months) confinement. A BCD is not a Dishonorable discharge (only a GCM can adjudge a DD). If you are flagged, contact the FBI and send a copy of your convening order and promulgating order. The FBI will send you a number code that you can present to the gun store owner. When the store owner enters the code, the flag is removed and your purchase can be completed. It literally took me two phone calls and one fax to straighten this out for my client. The only time the max punishment for the offense is relevant is at a GCM where the court has the authority to adjudge any punishment IAW the UCMJ.
 

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