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Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 20400
Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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I received a bad conduct discharge and 3 months confinement

Customer Question

I received a bad conduct discharge and 3 months confinement in 1991 and I am curious if I am ineligible for a VA Home Loan benefits and if I could legally possess a firearm. I receive the discharge for either a summary court martial or special court-martial
I know it wasn't a general court martial the charges were for writing bad checks. what had happened was I was stationed in the Philippines and was married my wife was still in California but between transitioning from the Philippines to Camp Lejeune and my
divorce being final during that transition I was overpaid and after I got to Camp Lejeune they corrected it and withheld money from my pay without me knowing it and I had written checks to the PX for items needed
Submitted: 2 years ago.
Category: Military Law
Expert:  Marsha411JD replied 2 years ago.
Hello,Thank you for the information and your questions. First, as to the firearm possession issue. If you were tried at a SPCM, then based on the date of your conviction, you would not have a felony conviction. Therefore, since this was not for a violent crime and you have no felony conviction, you would not be precluded from possessing a firearm.As for the VA home loan guarantee eligibility, the rule is that to qualify a servicemember must have been discharged under conditions other than dishonorable. So, technically, since you received a BCD and not a DD, you should qualify if you served at least 24 months on active-duty. Please let me know if you need any clarification.
Customer: replied 2 years ago.
Thank you very.much, I am a little confused. Isn't a BCD considered an other than honorable discharge? Wouldn't that preclude me from being able to get an va hole loan guarantee? Or is that for only "dishonorable" discharge? Also on gun ownership I am positive it was not a summary or general court martial. So that means it was a special court martial?? Also one last question, is there a way to upgrade my discharge being that it is past the 15 years since discharge? Thank you
Expert:  Marsha411JD replied 2 years ago.
Hello again and thank you for your reply. The only type of discharge that precludes VA Home Loan Guarantees is a dishonorable. You can see the eligibility requirements by going to: http://www.benefits.va.gov/homeloans/purchaseco_eligibility.aspAlso, just to be clear, a BCD is a punitive discharge and is not the same as an Other than Honorable, which is adverse but is not a result of a court-martial sentence.Yes, if you were court-martialed and it wasn't a GCM or a SCM (summary), it would have to be a SPCM (Special).As for an upgrade, you would have to prove that the court-martial made a legal error in your case. You would typically have had to appeal your conviction at the time you had the opportunity to after court-martial and lost that appeal and then have new evidence showing it was a legal error on the part of the courts. Otherwise, you would not receive an upgrade. You can always apply for one, even after 15 years, but must explain why the delay was so long. But again, there is almost no chance of success unless the situation as I described exists.
Customer: replied 2 years ago.
I made a mistake. Apparently it was a general court martial. But sentence was as same. See attached pictures. With this new information, am I still eligible to own a firearm and get a VA loan? Also please look at the "action" section it says "the sentence is approved, except for the bad conduct discharge, but I was discharged. Is there any remedy? Is there anything I can do to get my firearm and va home loan privileges restored? Thank you
Expert:  Marsha411JD replied 2 years ago.
Hello again,
You will need to look at your DD-214 to see what the characterization of your discharge was, but I suspect that you were administratively separated with an Other Than Honorable discharge since the CO did not approve the BCD and you not only had this conviction but also a SCM conviction from before (1990). The GCM or an OTH would not change the outcome in regards ***** ***** VA loan which you would still be eligible for as I mentioned since you did not receive a dishonorable and presumably served at least 2 years AD.
However, the GCM does change the outcome for purposes of possessing a firearm. That is a felony court and the charge you were convicted of does carry a potential sentence of over 1 year confinement, which is the threshold for a felony. It doesn't matter that you didn't receive that much confinement, only that the court could have awarded it. So, that makes this a felony conviction.
Customer: replied 2 years ago.
Is there anyway to get the right to own a firearm restored?
Expert:  Marsha411JD replied 2 years ago.
No, unfortunately, at this time, although Federal law (which is what prohibits the possession, ownership, etc.) does allow for relief from the prohibition, there is not a mechanism for reinstating rights as Congress has not funded the ATF to do so. You can read more about the law by going to: https://www.atf.gov/content/how-can-person-apply-relief-federal-firearms-disabilities
Expert:  Marsha411JD replied 2 years ago.
Hello again,
I wanted to touch base with you and make sure that you did not have any further follow up questions for me from the answer I provided to you on the 6th. For some unknown reason, the Experts are not always getting replies or ratings (in the pop up box, which is how we get credit (paid) for our work) that the customer thinks have gone through. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator.
In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/
Thank you.