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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 25448
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My ex Fiancé was in the USMC in 1994 he almost killed our 6

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My ex Fiancé was in the USMC in 1994 he almost killed our 6 week old daughter. He was charge with 128 Assault Specification 1-6 and he was sentenced to 18 months in the Brig and was dishonorable discharge with a special court martial. How could I find out if he is considered a felon or not?
Submitted: 9 months ago.
Category: Military Law
Expert:  P. Simmons replied 9 months ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

What you are saying does not make sense. That is, it is not possible for a special court martial to adjudge a sentence of 18 months. In '94 the maximum punishment a special court martial could impose was 6 months. Today it is 12 months (the change from 6-12 months happened in the late 90's

Is it possible he went to a general court martial?

Customer: replied 9 months ago.


I have a copy of his DD form 458 on the form it states court-martial convened by Special Court Martial convening order # XXXXX


 


 


 

Expert:  P. Simmons replied 9 months ago.
thank you

Just a moment, I will type up your answer
Expert:  P. Simmons replied 9 months ago.
Wow...that is unusual. There was a mistake...it is jurisdictional in nature. It is impossible for a special court to adjudge a DD or more than 1 year in confinement (and in 94 the limit was 6 months).

The Military does not have felony or misdemeanor charges. They simply have the UCMJ (uniform code of military justice)

This allows almost all charges to be brought to either a special court martial (which are typically convened by a colonel or Navy captain) or a general court martial (which must be convened by a general officer)

Now, practically speaking, a special court marital is a misdemeanor and a general court is a felony. That is since the maximum punishment for a special court is 1 year where at a general court it is up to life in prison (or death in select cases).

civilian jurisdictions will assign the category of "felony" to crimes that have a maximum allowable punishment of 1 year or more. For Federal Criminal Law, see US Code Section 3559(a).

Further, under federal law, a conviction at a general court makes possession of a firearm a crime.

So it is safe to say a conviction at special court is a misdemeanor and conviction at general court is a felony. See, for example, Muir vs State 517 A2d 1105 (Md 1986) Maryland court ruled that for sentence enhancement purposes, they required a general courts-martial conviction.

The problem you face is it is not clear what kind of court this was.

If the order says special court, then one would think it was a special court.

HOWEVER, a special court can not adjudge a dishonorable discharge (they can only adjudge a bad conduct discharge) And they can not adjudge 18 months confinement. Period.

So if the sentence approved was 18 months and a DD then it must have been a general court martial...and it may be an error on the documents you are looking at


Please let me know if you have more questions...happy to assist if I can



Customer: replied 9 months ago.

So how would I find out if there was an error made on the form? I need to know if he is a considered a felon or not......

Expert:  P. Simmons replied 9 months ago.
If he was sentenced to 18 months and given a DD, then it WAS a general court, and he iS a felon.
Customer: replied 9 months ago.


Why he is able to vote and buy a gun?

Expert:  P. Simmons replied 9 months ago.
Voting is not impacted after the sentence is served (since this was a federal crime federal rules apply). So if he is out, he can vote.

Gun? If he served 18 months he has a general court conviction..he should NOT be able to purchase a gun. But I can not tell you how it is he was able to...there are plenty of felons who purchase firearms.
Customer: replied 9 months ago.


Is there any way I can get a copy of his court martial record. My daughter is disable from his attack and I need it for a upcoming court case.

Expert:  P. Simmons replied 9 months ago.
Yep...what service was he in?

Customer: replied 9 months ago.

Marine

Expert:  P. Simmons replied 9 months ago.
Thanks

Just a moment...

Expert:  P. Simmons replied 9 months ago.
You can file a Freedom of information act (FOIA) request to

Department of the Navy
Office of the Judge Advocate General
Criminal Law Division
1254 XXXXX XXXXXe St SE Suite B01
Washington DCNNN-NN-NNNN

In this you state you want to request, under the FOIA the record of trial for the case. Give his full name the base he was stationed at, the unit he was with at the time, and the month/year of the trial

It will take a few months

They will send you a copy of the record.

Make sure you state that this is for personal reasons (so they do not charge you)

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 25448
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and 3 other Military Law Specialists are ready to help you

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