UCMJ and Form 4473

[divemedic]

Here is the law:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

So the question becomes:

Is this crime one that could be a term exceeding one year?

It depends.

Note it doesn't matter what sentence is actually imposed, it's based on the MAXIMUM punishment the court *COULD* have imposed. Maximum permissible punishment is based on the offense and the type of court-martial. The maximum prison-term which can be adjudged by a Summary court-martial is 30 days, regardless of the offense. Special courts-martial can impose sentences up up to one year, but prior to May 2002, Special courts-martial were limited to imposing sentences no greater than six months. General courts-martial can impose any sentence, up to the maximum punishment listed for the particular offense in the Manual for Courts-Martial (MCM).

So, those convicted by a Summary court-martial, and those convicted by a Special court-martial, are not prohibited persons.

Those convicted by a General court-martial may be prohibited persons, depending on the maximum punishment authorized for the offense, under the MCM.

The Uniform Code of Military Justice (UCMJ) is the bedrock of military law. The UCMJ is a federal law, enacted by Congress. Articles 77 through 134 of the UCMJ are known as the "punitive articles," -- that is, specific offenses which, if violated, can result in punishment by court-martial.

The law requires the Commander-in-Chief (The President of the United States) to implement the provisions of the UCMJ. The President does this via an executive order known as the "Manual for Court Martial" (MCM). Chapter 4 of the MCM includes, and expands on, the punitive articles.

The penalty that could have been assessed for each offense is dependent on what article you were charged under. Out of curiosity, which articles were you convicted under? Perhaps I can guide you there.

The fact that an 18 month sentence was awarded doesn't necessarily make you a prohibited person. For example, if you faked an illness and went AWOL, you could be convicted of Article 86 (Absence without leave) of less then 30 days- the maximum punishment for this crime is 6 months, and also convicted of Article 115 (malingering) with a maximum penalty of 12 months. Since this is two different crimes, IMO, you are still not a prohibited person.

 

[Pappy109]

Any incarceration for more than 11 months and 29 days is a felony conviction. Booking fingerprint from correctional facility intake are required to be entered in NCIC pursuant to Federal Law for all incarcerations. Military Dishonorable discharges are disqualification factors as well. If you fill the form out and provide missing or false information that is a class B Felony as well.

 

[DefenderNM]

Thank you all for your feedback. I knew I would consult an attorney, but thought I would get other's thoughts who have experience and knowledge with both the UCMJ and 4473.

I do not want to share what I was charged with, although one of you does have a PM with all the details. Just know that it was not any of the types of crimes that we all know are wrong and would never consider doing. Also, I was not a deserter or anything like that; I always did my duty. I was enlisted; and no I did not hit a butter bar!

Thanks again.

 

[stampsm]

From my understanding there is a loophole in the law that allows you to posses a antique pre 1899 firearm or muzzle loading firearms. the kicker in the ammo is also illegal to own for them anyways. I am not sure if the word ammunition is defined in 922 but it might apply to black powder also. there might be a loophole around the ammo ban also.

(n) It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

the key word is interstate commerce. Even you dug the copper ore out of the ground with your bare hands and smelted it to make the brass in state with no outside materials they still would try to claim interstate commerce. I am wondering if you could get away with black powder under that as it is easier to do and prove it was done completely with in state materials.

 

[Big Mike]

Its good that you're consulting an attorney. You should refer to your UCMJ/court documents and DD214 to ascertain the exact status you exited the service with.

That said, from what I've read above of what is related to the facts you've shared, it sounds like you are ineligible because of your criminal history. As stated above, any NCIC background check done on you would show as a felony conviction. Let us know. Good luck. Mike

 

[langstonjones]

I'm very late reading this, but wanted to reply as well with real life experience not speculation. You will definitely have to find a way to get this expunged or a pardon. Any charge in a General Court Martial can carry more than a year sentencing and this is gonna stop you from legally owning a firearm EVERY time. Like I said, I just went through this but mine was a SPCM and the most I could get was 6 months in 93'. I was getting denied until I cleared everything up with FBI/NICS. Now I'm good to go. All they see are the charges at the FBI and not the type of court martial. My charges in a GCM would have carried severe penalties but they were carried out in a SPCM and this was all the FBI needed to know. As soon as I sent in military paperwork showing it was an SPCM, I got a letter back in less than 2 weeks stating I was eligible to purchase or redeem a firearm. Unfortunately, you're not gonna be that lucky and if able to at all it's gonna cost you a ton..

 

[AbnCavScout]

I have a somewhat similar UCMJ issue, - so rather than start a new thread, I will post here to try to get some feedback.

I have been a Life Member of the NRA since 1978. I am also a recently retired U.S. Army Military Policeman, a former member of my States' National Guard Shooting Team, and a former civilian Police Officer in the town near where I reside. Unfortunately, I am now in need of some solid gun related legal advice and guidance.

I purchased a used pistol through AuctionArms.com at the end of last October. The transfer was delayed for seven days by the ATF, but upon their failure to take any further action, the transfer was allowed to take place, and I began carrying my new pistol along with my Concealed Carry Permit issued to my by the County Sheriffs Department. Four months later, I received a call from the ATF stating that I had been flagged on my background and I was to either return the pistol, or surrender it to their office. I have since returned the revolver to the transfer FFL dealer with instructions to hold the gun until I could appeal the ATF's decision.

I sent my appeal through the FBI's web page, and they wrote me a letter stating that they had received my appeal, but were back logged and just now working through appeals from last October. I guess that means that they might get to my submission in about August, 2012.

The "flag" stems from an Article 134 conviction prior to my retirement from the U.S. Army in early 2009. My mistake was that I had tried to do the right thing, but failed to do so in the right way. I was charged with "conduct prejudicial to good order and discipline" and my sentence was: "To be reduced to the pay grade of E-1; To forfeit $898 pay per month for 6 months; and To be confined for 6 months." I served 4 months and 19 days and I was still collecting a paycheck (albeit much smaller) while I was confined. I was then released early for "good conduct," and was then Returned to Duty to complete my term of service. I later retired with an Honorable Discharge.

As best as I understand the law - Title 18, United States Code, Section 921 (a) (20) (B) states that ... "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held."

While a military court-martial is a federal court applying federal law, there are distinct differences between a court-martial and a federal district court. For example, a court-martial is an Article I court under the U.S. Constitution, while a federal district court is an Article III court. Another key difference is that federal district courts normally apply Title 18, U.S. Code, in criminal matters, while courts-martial generally apply the Uniform Code of Military Justice (UCMJ) under Title 10, U.S. Code. ... They are NOT the same!!! The Uniform Code of Military Justice makes NO distinction between felony level offenses and misdemeanor level offenses. In addition, the UCMJ is free to prosecute service members for offenses that would be considered unconstitutional in U.S. criminal courts (i.e. going AWOL could land a soldier in military confinement for 6 months to five years, - while in the civilian world, that person would merely have been fired by his employer; ... and in the very recent past, someone admitting that they were a homosexual could have received UCMJ punishment.)

Upon my release from confinement, I was returned to duty, and later "HONORABLY" discharged. While I "could" have been ordered to military confinement for longer than one year, - I wasn't. Plus, "if" the U.S. Army considered my conviction a felony level offense, - I would not have been allowed to return to duty. The reason for that is because if a soldier is prohibited from possessing a firearm, - they would not be able to perform their primary duties. Any solder who has their firearm privileges revoked, is discharged from the service and not allowed to return to duty!

If I am interpreting this correctly, Title 18, United States Code, Section 921 (a) (20) (B) says that the standard of measurement in my individual case can not be measured by Title 18, - and thus, I am therefore NOT prohibited from possessing firearms because of my court-martial, and ANY attempt to apply Title 18 standards to a Title 10 sentence would be inappropriate AND unconstitutional.

Am I correct, or not? I would certainly appreciate any guidance with this issue, as well as guidance on what I should do to protect about two dozen other firearms, and about 8,000 rounds of ammo that I own?

 

[mljdeckard]

Call JAG? (Where's Leadcounsel?)

 

[F-111 John]

I would certainly appreciate any guidance with this issue, as well as guidance on what I should do to protect about two dozen other firearms, and about 8,000 rounds of ammo that I own?

I would suggest you run, not walk, to your nearest attorney and ask her/him.

 

[NavyLCDR]

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

The law does not define a felony based on what the actual sentence was - the law defines the felony based on what the possible sentence could have been. Might want to read the statutes, it will probably change your "feelings".

18 USC 922:

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Obviously his crime was PUNISHABLE by a sentence of more than one year.

 

[NavyLCDR]

Am I correct, or not? I would certainly appreciate any guidance with this issue, as well as guidance on what I should do to protect about two dozen other firearms, and about 8,000 rounds of ammo that I own?

Sounds to me like you are OK to possess firearms. I would have a friend hold the firearms and ammo that are in your possession for you, though, until it gets settled. Good luck!

 

[dogtown tom]

AbnCavScout ...The transfer was delayed for seven days by the ATF, ....... I received a call from the ATF stating that I had been flagged on my background ..... until I could appeal the ATF's decision.

FBI, not ATF.
ATF has nothing to do with the FBI NICS check.