UCMJ and Form 4473

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DefenderNM

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Hi All,

I'm new here and have a question on answering a couple questions on Form 4473 and how my military record comes into play.

These are the facts:

In 1997 I was charged with two offenses and tried under a general court martial.
I had a pre-trial agreement stating that I was not to receive less than a Bad Conduct Discharge and no more than 1 year in prison.
I do not know what the maximum prison term could have been, but logically it must have been more than 1 year based on my pretrial agreement.
The sentence that I recieved was determined by 5 members and not the judge only option.
The members ended up sentencing me to 18 months in prison (I think) and a Dishonorable Discharge.
My sentence was of course modified to 1 year and a BCD.

My questions regarding questions on Form 4473:

11c Is this a felony conviction? Do you even need to know what the charges where to make this determination? Could the judge have sentenced me to more than one year? I had a pretrial agreement to no more than one year, but without it I could have been sentenced to more than one year. I realize that the 11c question specifically states: "even if you received a shorter sentence including probation." I would think this applies if during sentencing the judge could have given me 18 months (lets pretend there was no pretrial agreement), but instead gave me 1 year. The probation comment would apply if I had been sentenced to 14 months (as an example that is more than one year), but was released after 10 months due to good behavior and paroled for the remaining 4 months.

After typing all of this and rereading 4473 for the tenth time I am leaning more towards answering "yes" on 11b, where at first I thought "no".

For those who hate me for having anything less than an honorable discharge I sincerely apologize. For all others, I apologize to you too.
 
For those who hate me for having anything less than an honorable discharge I sincerely apologize. For all others, I apologize to you too.
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Nobody Should hate you for the fact you made a mistake. Presumably, you paid your price and learned your lesson. If you apologized to whomever was the victim and paid your price, then that's what matters.

Now, on your issue, it doesn't look good. The facts are:

You were sentenced by a court to more than one year (18 months in your statement). What is actually served is not material here; what the sentence was is the key. Since they gave you 18 months, they were tagging you as a felon. Based on that sentence, it certainly does sound like felony territory. But, it does not matter whether the crime was a felony or misdemeanor; you were sentenced to more than one year by a legitimate court as asked on form 4473. Thus, it appears you cannot answer this as you want to. Most jurisdictions define "felony" as a crime getting a sentence of more than one year.

I would take the next step of finding a real "firearms" attorney in your state to have a free consultation with to talk this over. "Restoration of rights" is achievable in many jurisdictions based on the circumstances. Find a knowledgeable firearms attorney through a local gun show, your state's associations, etc., and consult with them what it would cost to do that.

There is a strong crowd, especially in the gun community, that feels the gun prohibition against felons for those that commit non-violent or non-gun crimes are absurd. I agree. Hopefully, in this post-Heller age this will eventually become the law and practice, but in the mean time you need to be very careful. You need to have no guns in your house (even if owned by a spouse or other family member), and you need to not have any guns under your "control" (e.g., in a safe you know the combination to), until you have this sorted out and your rights restored or verified.
 
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Sorry to inform. A conviction from a General Courts martial is considered a felony.

At least my understanding from 21 years in the Army

To be sure, consult an attorny
 
Form 4473
Question
Quote:
11g:
Have you been discharged from the Armed Forces under dishonorable conditions?
If "YES" you are ineligible to receive a firearm.
Click to expand...

It was not a dishonorable discharge. He says it was a BCD, which is one step below a dishonorable. But the 18 month sentence and/or the general courts martial conviction equals a felony and ineligible to possess firearms. I don't agree that is right to do in every case, but, right now, it's the law.

I know some states will not issue a CCW to a person with a BCD. There might even some states that prohibit firearms possession for a person with a BCD, but I do not know that for a fact.

To the OP, muzzleloaders and black powder revolvers might be an option for you depending on your state laws. Since you seem to be in New Mexico, I would think they would be options for you.
 
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None of my damn business, but I gotta ask - what were the charges that resulted in a recommendation of a DD? Even if it was modified to a BCD. Both the result of a Court Martial, but in my limited experience a DD is rare.

Also, agree with the others that the 18 month sentence thing probably puts you in a prohibited person category.

From the 4473:

EXCEPTION 1: A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had civil rights (the right to vote, sit on a jury, and hold public office) restored AND (2) the person is not prohibited by the law where the conviction occurred from receiving or possessing firearms. Persons subject to this exception should answer “no” to 12c or 12i, as applicable. A person who has been convicted of a misdemeanor crime of domestic violence also is not covered by the prohibition unless: (1) the person was represented by a lawyer or gave up the right to a lawyer; and (2) if the person was entitled to a jury, was tried by a jury or gave up the right to a jury trial. Persons subject to this exception should answer “no” to 12i.
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As I think about this it comes to mind that he pleaded guilty in an agreement limiting the time and discharge. Therefore he was not sentenced to 18 months but 1 year and a BCD not a DD. I would check with an attorney but I feel that you are alright to get a gun. FRJ
 
As I think about this it comes to mind that he pleaded guilty in an agreement limiting the time and discharge. Therefore he was not sentenced to 18 months but 1 year and a BCD not a DD. I would check with an attorney but I feel that you are alright to get a gun. FRJ
Click to expand...

The law says, "COULD HAVE imposed a sentence more than one year." It does NOT say "sentenced to more than one year." If he had to plea DOWN the sentence to 1 year, then clearly the judge COULD HAVE imposed a sentence of greater than 1 year.

And besides, he was convicted at a GENERAL COURT MARTIAL which equals a FELONY conviction regardless of the sentence.
 
Yes it does say could have imposed and by having a pretrial agreement he has limited his max punishment to 1 year. The findings of the court martial are not final until the person in charge of his division or whatever sentences him. If he was in the army it would be the commanding general of the division he was in. This would be the same person he made the deal with. As far as a general court being an automatic felony I don't think so.A person can get a summary or special court for murder and I'm sure its still a felony. While a person can also get a general court for awol and I doubt very much if thats a felony. However as I said in my post this is not the place to get legal advise especially for something as potentially serious as this. I still suggest he see a lawyer. FRJ
 
I did 20 years in the USAF. It was always my understanding that if the "possible" sentence was in excess of 1 year, that constitutes a felony conviction. The actual sentence applied wouldn't change that.

Absolutely, though, consult an attorney familiar with the UCMJ.
 
"even if you received a shorter sentence including probation" - you did receive a shorter sentence. The fact that it was only limited to 1 year by the pre-trial agreement is irrelevant. You could have been sentenced to more than 1 year (as proved by your sentence before it was modified by the PTA) and that is relevant. I would say you would have to answer yes on that question. I'd lawyer up if you have any doubts.
 
There's the "right" answer and then again...what comes up when you run your name through NCIC and get a records check? It will say "convicted felon" or not.

I believe that's what is going to be checked at the local level. Obviously, you may be alllowed to purchase one, but have a problem later if your situation is as it sounds.
 
A Non-Judicial Punishment/Article 15 is a Infraction (i.e. Traffic ticket)

A Special Court Martial is a Misdemeanor

A General Court Martial is a Felony

The UCMJ article violated is irrelevant, rather the level of prosecution brought forward. Each level of prosecution is limited as to the punishment imposed upon conviction, regardless of the offense charged.

Example: UCMJ Article 112 (Controlled Substance Possession) Failing a Drug Test - NJP, Possession of 2-3 ounces of Marijuana - (Probably) Special Court Martial. Possession of 20 Kilos of Crack - General Court Martial. All three courts prosecuting a violation of the same UCMJ article.

You were convicted at General Court Martial, ergo you are a felon.
 
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A felony is any crime punishable by 1 year or more in prison in terms of state and federal laws. I cannot speak for military terminology but as far as I have seen in my experience, its pretty much the same way.
It doesnt matter what you served, or what you were sentenced to. If the "possible" penalty for the charge you were convicted of was more then a year, then its a felony.

You need to consult an attorney, preferable one who has some experience with military courts, but from what you are saying, you were convicted of a felony, and given a lesser sentence.

Conviction of a felony still makes you a convicted felon, even if you testified for the government, did a million hours of community service and made a plea deal and only served a month in jail.

Some place you have a "record of conviction" that will come up on an NCIC check and that will state the charge you were covicted of and that will be the ultimate determining factor if you can or can't.

Good luck.
 
I am not an attorney, but in the 70's I ran afoul of the UCMJ to the tune of an article 15. Everything I remember from the experience is as stated by the previous posts. Any change to the UCMJ since then I know nothing about. From what I know, his chances are not good but I agree with hiring an attorney that is conversant with the UCMJ.

I do not think for all our efforts that we can do more than this in this situation. Everything else is just meaningless speculation.
 
I hope you at least did something worthwhile, like punching a 2nd Lt.

(Enlisted guys will know what I mean)
 
I hope you at least did something worthwhile, like punching a 2nd Lt.
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Hey, come on now! :D

BTW, a Navy LT is a Captain in all the other services. And a Captain in the Navy is a Colonel everywhere else.
 
I am not an attorney but spent 24 years in the Army and it has always been a conviction by a General Courts martial is a felony.
I suggest you get an attorney as others have suggested.
 
I am not an attorney, but in the 70's I ran afoul of the UCMJ to the tune of an article 15. Everything I remember from the experience is as stated by the previous posts. Any change to the UCMJ since then I know nothing about. From what I know, his chances are not good but I agree with hiring an attorney that is conversant with the UCMJ.

I do not think for all our efforts that we can do more than this in this situation. Everything else is just meaningless speculation.
__________________
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Art. 15 is a non-judicial punishment (NJP). The potential punishments are significantly less than what can be dealt out by a a general court martial. Service members have the right to refuse the art. 15 and go for a courts martial as well.

Here is a link detailing the maximum penalties imposable by NJP:
http://usmilitary.about.com/od/justicelawlegislation/a/article153.htm
 
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