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PhilCave
PhilCave, Lawyer
Category: Military Law
Satisfied Customers: 1064
Experience:  33 years military law experience.
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I received a discharge under other than honorable conditions

Resolved Question:

I received a discharge "under other than honorable conditions" Does this discharge diqualify me from owning a firearm and can it be upgraded after 34 years?
Submitted: 5 years ago.
Category: Military Law
Expert:  PhilCave replied 5 years ago.
No, it is not a conviction.

Actually you have only 15 years from the date of discharge to seek and upgrade. So if this was 34 years ago I'm afraid you are too late.

There have been a very few people successful this late but extraordinarily difficult.

Was it VN related?
Customer: replied 5 years ago.

No it was not vn related. However, it was during a court martial but the judge decided my involvement did not warrant the bad conduct discharge given to the others involved.

Do thoses circumstances constitue a dishonorable discharge under the federal firearms ownership laws? or do you know?

Expert:  PhilCave replied 5 years ago.
No. You DO NOT have a dishonorable discharge. Understand the question.

An OTH is not a DD.
Customer: replied 5 years ago.
Well based on youir answer I will assume i can buy a firearm is that your opinion?
Expert:  PhilCave replied 5 years ago.
You are good to go.

I'll use VA rules as a guide because they are pretty similar.

A person who answers "yes" to any of the below questions may be prohibited from purchasing or possessing a firearm pursuant to state and/or federal law.

  1. Are you under indictment for a felony offense?
  2. Have you ever been convicted, as an adult, in any court of a felony offense?
  3. If you are 28 years old or younger, have you ever been adjudicated delinquent as a juvenile 14 years of age or older at the time of offense of a delinquent act, which would be a felony if committed by an adult?
  4. Were you adjudicated as a juvenile 14 years of age or older at the time of the offense of murder in violation of § 18.2-31 or 18.2-32, kidnapping in violation of § 18.2-47, robbery by the threat or presentation of firearms in violation of § 18.2-58, or rape in violation of § 18.2-61? (If adjudicated as a delinquent for these offenses, you must answer yes. You are ineligible regardless of you current age and prohibited for life unless allowed by restoration of rights by the Governor of Virginia and order of the circuit court in the jurisdiction in which you reside.)
  5. Have you ever been convicted in any court of a misdemeanor crime punishable by more than 2 years even if the maximum punishment was not received?
  6. Is there an outstanding protective or restraining order against you from any court?
  7. Is there an outstanding felony or misdemeanor warrant of arrest pending against you from any jurisdiction?
  8. Are you an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or any controlled substance? The Federal Gun Control Act defines an addicted person, or unlawful user, as a person who has a conviction for use or possession of a controlled substance within the past year or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.
  9. Have you ever been acquitted by reason of insanity?
  10. Have you ever been adjudicated legally incompetent or mentally incapacitated, or adjudicated an incapacitated person?
  11. Have you ever been involuntarily admitted to a facility or involuntarily ordered to outpatient mental health treatment?
  12. Have you ever been the subject of a temporary detention order and subsequently agreed to voluntarily admission for mental health treatment?
  13. Have you been discharged from the Armed Forces under dishonorable discharge?
  14. Are you an alien illegally in the United States?
  15. Are you a nonimmigrant alien? A nonimmigrant alien is prohibited from receiving a firearm unless he or she falls within an exception to the nonimmigrant alien prohibition (e.g., hunting license/permit; waiver).
  16. Are you a person who, having been a citizen of the United States, has renounced your citizenship?
  17. Have you ever been convicted for the misdemeanor crime of domestic violence? This includes all misdemeanors that involve the use, threat of, or attempted use of physical force (e.g., simple assault, assault and battery) if the offense is committed by one of the following parties: a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.
  18. Have you purchased a handgun from any source within the last 30 days? (Handgun Purchases Only) Virginia Code Section 18.2-208.2:2 (P) provides exceptions to the handgun purchase restriction.
  19. Are you a person who, within a 36 consecutive month period, has been convicted, under Virginia law, of 2 misdemeanor offenses for Possession of Controlled Substance or Possession of Marijuana? (Handgun Purchases Only)
Here is what the BATF says.

Section 922(g) of the GCA prohibits certain persons from shipping

or transporting any firearm in interstate or foreign commerce, or

receiving any firearm which has been shipped or transported in

interstate or foreign commerce, or possessing any firearm in or

affecting commerce. These prohibitions apply to any person who--

(1) Has been convicted in any court of a crime punishable by

imprisonment for a term exceeding one year;

(2) Is a fugitive from justice;

(3) Is an unlawful user of or addicted to any controlled substance;

(4) Has been adjudicated as a mental defective or committed to a

mental institution;

(5) Is an alien illegally or unlawfully in the United States;

(6) Has been discharged from the Armed Forces under dishonorable

conditions;

(7) Having been a citizen of the United States, has renounced U.S.

citizenship;

(8) Is subject to a court order that restrains the person from

harassing, stalking, or threatening an intimate partner or child of

such intimate partner; or

(9) Has been convicted in any court of a misdemeanor crime of

domestic violence.
PhilCave, Lawyer
Category: Military Law
Satisfied Customers: 1064
Experience: 33 years military law experience.
PhilCave and other Military Law Specialists are ready to help you
Customer: replied 5 years ago.

Thanks Phil I'll give you a bonus for your hard work, but lets continue our discussion.

I finished my time of service in Ft Leavenworth. My confusion is does the end of service disciplinary action determine conviction or does the discharge?

 

I also plead out 19 years ago on a felony assault charge but received deferred adjudication. I completed my probation and per the order my charges were dismissed.

My understanding is that this would not constitute a conviction. Any thoughts on this?

Expert:  PhilCave replied 5 years ago.
OK, here comes the complication.
What did you get convicted of in the court-martial?
The felony assault charge is interesting. How old were you?
Customer: replied 5 years ago.

I beleive it was assault or robbery. I am not sure. I was 17. I was scared and in a civil court I would have gotten a new trial because I rememebr the lawyer said just plead guilty and you can go home. Stupid 17 year old me! it may have been an article 15 hearing. At any rate I was ordered to serve one year and given an OTH. But my pay was not cut. According to everything I've read a conviction at court martial requires your pay be stopped immediately. This is why I'm confused.

 

I was 34 and the charges were in Texas. I'm pretty sure the only thing available to the public is the arrest record as the definitions I have read in the Texas criminal code attest that this type of plea with successful completion of probation sets aside the conviction.

Expert:  PhilCave replied 5 years ago.
No, back then you would have received your pay. The law didn't change until the early 1990's.

If you were convicted at court-martial of robbery, that's a likely felony under the state law of the state you are in. You cannot be sentenced to confinement from an Article 15.

If it is assault, then it would be necessary to know what kind of assault: any weapon, amount of injury.

I've read that in some states expungement or your process does not bar and in others in can.

Also, here is thewebsite for getting civil rights back that may help.

http://www.sentencingproject.org/

Pick your state of residence.

http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=486








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