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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 01-01-2014, 4:58 PM
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Default DROS Delay and New System/Law

If I am currently on DROS Delay (since Feb, 2013), what happens now because of new law and system?

a) Can I pick up my long gun now?
b) Do I need to wait 30 more days then it will be released?
c) Do I need to submit another DROS and wait a possible 30 more days?

Anyone know?
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  #2  
Old 01-01-2014, 5:07 PM
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so you are on delay for 9 month? what's the whole story here?
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Old 01-01-2014, 5:11 PM
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I purchased a gun prior to finding out i may be ineligible (got a bcd in army in 1999). Put on delay after 8 days. Multiple calls to doj came up empty except for them to say they didnt know if i was permitted or not permitted and that i was on delay while they did their research. Almost a year later and nothing.
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Old 01-01-2014, 5:17 PM
Armando de la Guerra Armando de la Guerra is offline
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BCD is not Dishonorable. Isn't the question 'dishonorable'?
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  #5  
Old 01-01-2014, 5:28 PM
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That is the debate... waiting to see
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Old 01-01-2014, 5:43 PM
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The short answer is it depends on the reason for the BCD. You can try the following link to find out more information.

http://www.justanswer.com/military-l...#ixzz1Ekm6qzKD

This is something that will require the services of an attorney who understands military law and gun ownership law.
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Old 01-01-2014, 8:56 PM
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I would go into the ffl and talk to them. The way I understand it, the new law says if you dont hear from DOJ you can pick up after 30 days. Technically you have waited longer then 30 days so you should be able to take position of the gun. Whether you can convince the FFL to release the firearm is another question.

Last edited by Trriemferent; 01-01-2014 at 9:04 PM..
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  #8  
Old 01-01-2014, 9:57 PM
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Originally Posted by Trriemferent View Post
I would go into the ffl and talk to them. The way I understand it, the new law says if you dont hear from DOJ you can pick up after 30 days. Technically you have waited longer then 30 days so you should be able to take position of the gun. Whether you can convince the FFL to release the firearm is another question.
The problem with this, as I understand it, one also needs to satisfy federal law. The federal background check has to be passed and the gun delivered within 30 days or the federal check has to be redone. This came up on another, very long thread. http://www.calguns.net/calgunforum/s...d.php?t=656150

Go to near the end and I tried by asking questions, and giving responses making assumptions with the idea that if I was wrong I would be corrected exactly how a CA FFL would know a buyer had passed the federal background check. I got nowhere other than flamed. All I could find was the DOJ ran the Federal check at the time it did the CA background check, and yes, they are 2 different checks. When the DOJ sends whatever message they send to the FFL to proceed with the sale, it means the buyer has passed both background checks. I was told by a couple of FFL's in the thread that there was no way they could independently verify if the buyer passed the federal background check.

Now, tomorrow, I will be picking up a gun I bought from an out-of-state FFL and it was sent to a CA FFL. I used one that uses the e-4473 system. I filled out the 4473 online rather than a paper copy. I then filled out the paperwork required for CA. The FFL got an online response from the federal system that the e-4473 was submitted to that I had passed the federal background check. He completed what he needed to do and then told me that as far as the feds were concerned I was gtg. I asked if the DOJ decided to delay me, what would happen on day 30, since it would be in Jan. 2014? He said if I came in on day 30, he would release the gun to me. He already discussed this with his attorney. If I came after day 30, he would have to redo the 4473, wait until the feds approved it, and then he would release it. That will be his standard operating procedure until the ATF tells him otherwise. His attorney has sent a letter to the ATF to ask for clarification, but for now, he tells his customers that if there is a delay, they need to come in on day 30 to make life easier for all.

As always, we have to deal with both state and federal laws. As usual, it will take time for the ATF to inform the CA FFLs how to proceed while still meeting the requirements of the federal laws.
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  #9  
Old 01-01-2014, 10:01 PM
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You may need a copy of the Manual for Courts Martial frpm 1999 and the document showing which type of courts martial your case was handled at. The link above is right on.
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Old 01-01-2014, 10:13 PM
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Two things:

1. Can't your discharge be reviewed and then upgraded or was it already upgraded from dishonorable to bad conduct? There is a review process, but you'll need a lawyer who specializes in military justice.

2. If what you were discharged for is a felony in the state which you are residing, this can be cause for a denial but it sounds like it is the fed that is having the issue, so I am not sure.

If they haven't answered after 9 months, I get the feeling sooner or later you are going to have to re-file, but if it is still "on-hold" I imagine it is still active.
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  #11  
Old 01-01-2014, 10:16 PM
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Quote:
Originally Posted by BCDguy View Post
I purchased a gun prior to finding out i may be ineligible (got a bcd in army in 1999). Put on delay after 8 days. Multiple calls to doj came up empty except for them to say they didnt know if i was permitted or not permitted and that i was on delay while they did their research. Almost a year later and nothing.
There is nothing on a 4473 that mentions BCD (which is not a dishonorable discharge). You are either getting jacked around by CA or there is other stuff going on.
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Old 01-02-2014, 8:05 AM
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When I talked to DOJ, they were not helpful... only that it had to do with something with the "Army". She asked if I was "Dishonorably Discharged" I said "no". I didnt feel I need to tell her I was discharged with a Bad Conduct Discharge or by a General Court Martial (Positive Drug Test LSD). She then said to wait, and that they were probably waiting for some research or paperwork and to be patient. After a couple months I called back and they suggest a LiveScan which came back clean. Which then they told me is only a CA check and to request a Federal Check, which I have not... I have already spent more for an AR15 buying it at a peak of the market, a DROS fee, and a Background Check... If CA cant determine if I am permitted or not permitted thats their job. And if they can't I either want my long gun or I would even be happy with a straight up denial, then I could get some of my money back, and know for certain my restriction to owning a gun.
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  #13  
Old 01-02-2014, 10:37 AM
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Were you high when they tested you? LSD is only detectable for a max of 4 days in blood, 24 hours in urine. It's also not common for that expensive test to be administered. I'm surprised you didn't get a dishonorable for that.
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Old 01-02-2014, 10:45 AM
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Have you run your Livescan so that you can see what DOJ is looking at?
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  #15  
Old 01-02-2014, 11:18 AM
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Quote:
Originally Posted by Armando de la Guerra View Post
Have you run your Livescan so that you can see what DOJ is looking at?
He said he did. What he needs to run is his FBI record.
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Old 01-02-2014, 11:30 AM
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Were you high when they tested you? LSD is only detectable for a max of 4 days in blood, 24 hours in urine. It's also not common for that expensive test to be administered. I'm surprised you didn't get a dishonorable for that.
Not to justify my decisions when I was young and dumb... the only reason i tried LSD was I thought it didn't come up in a drug test... i was wrong... yes it was within 24 hours.

Without getting into to many specifics... Tested positive... and had a special Court Martial and was going to be released from Army under BCD... took 3 months of hell. Talk about being treated like crap and not being cared about till you leave... a week before I was to get discharged I was done with Army, went out and partied and on my way back into base got a DUI, Positive LSD test (it couldn't happen twice right i thought) and possession of a small dime bag of coke (never took any of it)... ended up being in confinement for 6 months on pretrial confinement, had General Court Martial and a BCD, released the next day.

I made some big mistakes... i hung around the wrong people hurt myself and people I loved.

It actually was great for me... it woke me up, humbled me, changed my life... never touched drugs, or even alcohol since... now I am successful member of society, married with kids.

Like I said, I googled if BCD would prevent me from owning a gun, and found only a dishonorable discharge would prevent me. So I bought gun. After I was put on delay I searched internet more to find out if you have a General Court Martial I would be... maybe. So I am just waiting to see. If I slip through cracks great. If not at least I know and wont buy a gun.

Just thought the DOJ would know if I was or not allowed to own a gun.
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Old 01-02-2014, 11:33 AM
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that's a long wait.

too much suggestions here that will not even help the OP, don't go to DOJ to fix it because they don't have such capability nor do they have a I feel sorry for you so let me review your case button, don't go to FFL to talk to them about it, Don't even POST on a forum to discuss your issue as most lawyers hate that.

get a lawyer familiar with article 67 to file a review with the military court of appeals and get that BCD lowered to Administrative Discharge. I don't know you personally so I cant judge you, however some DD gets bumped down to BCD depending on how your case was presented and maybe even judging your moral character but to the eye of DOJ... "same difference" if you know what I mean.

Last edited by caburian; 01-02-2014 at 11:39 AM..
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Old 01-02-2014, 11:39 AM
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Was the cocaine possession on your BCD? That very well could bar you from owning firearms. Prior to yesterday cocaine possession was a felony in CA. It can now be charged either way.

http://www.latimes.com/local/politic...,2205687.story

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SACRAMENTO -- Prosecutors in California would be able to file misdemeanor charges instead of felonies in cases of simple possession of heroin, cocaine and other hard drugs under a measure sent by state lawmakers to Gov. Jerry Brown on Tuesday.
Sen. Mark Leno (D-San Francisco) told his colleagues that his measure gives more flexibility to local prosecutors “so that they can use their good judgment in determining whether to charge a specific crime of simple possession of a drug to be either a felony or a misdemeanor.”
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Old 01-02-2014, 11:46 AM
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It would appear that a General Court Martial conviction is treated much like a felony conviction. You very well may be a prohibited person.

http://www.justanswer.com/military-l...discharge.html

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Expert: P. Simmons replied 4 years ago.
If you have a felony conviction you are precluded under federal law and most state laws from owning a firearm.

If you are convicted of a crime related to domestic violence, you are prevented from owning a gun under federal law.

The military is different than civilian jurisdictions...it does not classify crimes as felony or misdemeanors. Rather it lists the various conduct that is criminal in the UCMJ and allows the commander to determine the forum that they want to send the prosecution to...either Summary, Special or General Courts-Martial.

The common perception among many who are familiar with the system, is that a conviction at a special court-martial is similar to a misdemeanor and conviction at a general court-martial is similar to a felony.

In the state and federal system, the difference between a felony and misdemeanor is the maximum punishment associated with the charges...with a misdemeanor charges punishable less than a year in jail and a felony charge more than a year. So a charge of "dog not on a leash" maximum punishment 1 month is jail is a misdemeanor and Murder, maximum punishment life in prison is a felony. In federal and state courts, prior to referral to a felony trial the state is often required to go through a grand jury...this is similar to the general court-martial where the government must comply with Article 32, UCMJ (similar to a grand jury).

SO, if your conviction was at a special court martial and NOT for domestic assault related charge, you do not have a felony and should be able to own a weapon.
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Old 01-02-2014, 11:50 AM
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well to be fair. If DOJ see's any record of felony conviction it will not be considered delay.. its denial.

its delayed because they see a record they have no access to, they can request for DOD records but that gets piled up quickly behind paperwork.

best bet is to read what I put previous.
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Old 01-02-2014, 11:52 AM
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Call Attorney Bruce Colodny (909) 862-3113
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Old 01-02-2014, 11:58 AM
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You have been given a lot of good advice for your situation. http://www.calguns.net/calgunforum/a.../t-706569.html

Your problem is likely not with CA. It is with the feds. You really need to consult an attorney.

In the link I provided above and give again below you can pose your question to a military lawyer to get a better answer. Make sure to include the whole story, the part about the LSD.

http://www.justanswer.com/military-l...#ixzz1Ekm6qzKD

My best guess is that you were convicted at a GCM of an offense that could be punished by more than 1 year of confinement (it appears 2 years). It appears that it does not matter that you were sentenced to less than one year, it only matters that you could have been sentenced to more than 1 year. So, that is what is probably holding you up.

In the other thread, tincon pointed this out and gave you very good information.

The federal database may not contain all the information. Government agencies are not known for being cooperative. The military probably did not send the disposition of your case to the FBI, which I believe maintains the database for the federal background check. So when CA did its check, it likely saw your arrest in the army in the FBI database, but it does not have the disposition of case. So it is waiting to hear from the army. The army is likely ignoring CA, and hence your indefinite delay.

Understand, the federal check does not mean that you are legal to buy, it only means that they have no record showing you are a prohibited person at that moment.

Had you told the DOJ about the background for the BCD in the army, you might have gotten a better answer. Then again, you most likely would have gotten more FUD. So, again, you need to talk to an attorney who knows military law as well as gun laws.

I agree, it sucks. My personal opinion is you should not be prohibited. Unfortunately you need to decide if you are willing to pay to get your gun rights. I know this is an oxymoronic sentence, but that is where things are at.

You can also reDROS it and try to pick it up after 30 days under the new CA law. But you will need to pass the Federal background check and have an FFL willing to release it to you on day 30.

For the federal check questions, you might be able to contact your local FBI office.

Continuing to ask for free advice on the Internet will continue to get the the same responses; a mixed bag and all the time your gun is still on delay. You can wait and complain about it or take action. Unfortunately the action will require money.

Remember, you get what you pay for and free advice is ultimately worthless when what you need is legal advice.
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Old 01-02-2014, 5:42 PM
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Thanks. Like mentioned what you wrote is what I found out at well. If I knew that before, I wouldn't have bought gun.
But i did. So i am just wondering what happens next.
If after 30 days ffl releases gun to me? Does DOJ keep researching? If they determine I was soposed to get denied will they come and confensate it? Will I get in trouble for possessing a firearm even if they released it?
Those are questions I have... will discuss with lawyer.
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Old 01-02-2014, 6:28 PM
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Quote:
Originally Posted by BCDguy View Post
Thanks. Like mentioned what you wrote is what I found out at well. If I knew that before, I wouldn't have bought gun.
But i did. So i am just wondering what happens next.
If after 30 days ffl releases gun to me? Does DOJ keep researching? If they determine I was soposed to get denied will they come and confensate it? Will I get in trouble for possessing a firearm even if they released it?
Those are questions I have... will discuss with lawyer.
Yep good questions for a lawyer. I wonder if the DOJ eventually determines you're prohibited, but you reDROS'd after the 1st that includes longgun registration, and picked it up, if you'd end up being added to the APPS database for an eventual knock on the door.
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Old 01-02-2014, 6:43 PM
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Go get a refund. Party seems over.
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Old 01-02-2014, 9:05 PM
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Quote:
Originally Posted by BCDguy View Post
Thanks. Like mentioned what you wrote is what I found out at well. If I knew that before, I wouldn't have bought gun.
But i did. So i am just wondering what happens next.
If after 30 days ffl releases gun to me? Does DOJ keep researching? If they determine I was soposed to get denied will they come and confensate it? Will I get in trouble for possessing a firearm even if they released it?
Those are questions I have... will discuss with lawyer.
The DOJ is like any other government agency, they are very inefficient. It takes them twice as long to do half the work for twice the money with double the workforce of any private company (and that is being generous).

Everything is done by computer. They have a flag from your army record. Let's assume it is from the Federal background check. They will send a request to the DOD for more information. That request has already been sent, that is what they are waiting on and why you are still on delayed status rather than denied or released. The DOD is overwhelmed with all that is going on and is also dealing with budget cuts. For the DOD, this is a low priority. So it will likely sit on a desk or in a file for a long time. It might get lost and disappear forever into some black hole. The acronym SNAFU comes to mind. Or, in the future, some clerk finally gets to the request by the DOJ and sends the information back to CA.

If the information turns out to be such to make you prohibited, then the DOJ will add you to its APPS list. It will take time, then one night, the APPS SWAT team will come knocking on your door around midnight and use gestapo tactics to scare the cr*p out of your family to do everything possible to gain entry into your house to search it. Even if you hand over the one gun they know you bought, they will likely still want to search the entire house to be sure you are not hiding other weapons.

Of course, no one will have considered that just maybe, a call to you to let you know of the situation, or a letter, and then say 30 or 60 days to dispose of it by selling it or giving it to a friend or family member would work for all concerned.

If it were me, I would contact an attorney and find out what steps need to be taken to reduce the BCD to a less than honorable if that would restore my gun rights. If not, I would explore whatever other avenues there are just so I could have all the tools needed to protect my family from the bad guys.

You turned things around. You need your rights restored.
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Old 01-02-2014, 10:46 PM
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Quote:
Originally Posted by BCDguy View Post
If confesation is a possibility, and my gun was in safe. Can they force me to open it or open it without my permission?
That's what search warrants are for.
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Old 01-03-2014, 6:22 AM
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Quote:
Originally Posted by BCDguy View Post
Thanks. Like mentioned what you wrote is what I found out at well. If I knew that before, I wouldn't have bought gun.
But i did. So i am just wondering what happens next.
If after 30 days ffl releases gun to me? Does DOJ keep researching? If they determine I was soposed to get denied will they come and confensate it? Will I get in trouble for possessing a firearm even if they released it?
Those are questions I have... will discuss with lawyer.
Save your dough, BCD and cocaine= no guns for you. That's two felonies.
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Old 01-03-2014, 10:33 AM
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Simple answer to your initial question is that the new 30 day release policy ONLY applies to DROS done 1/1/14 and after. DROS before that date is not effected by the new laws.
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Old 01-03-2014, 10:50 AM
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It isn't about the BCD here. General Court-Martial is equal to a felony.
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Old 01-03-2014, 1:50 PM
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So I guess "IF" they release it, I can expect a future visit... to confiscate gun.

But what if, they release it, can I turn around and sell gun through consignment through FFL to someone else...? Want to try and get some of my money back. Would this show I no longer own the gun and free of surprise visit?
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Old 01-03-2014, 2:25 PM
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You might be able to put it on consignment without the DOJ releasing it. Talk to your FFL.

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The Constitution shall never be construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. -- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87 (Pearce and Hale, eds., Boston, 1850)
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Old 01-31-2014, 12:42 AM
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WALDSCHRAT WALDSCHRAT is offline
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A conviction at a Court Martial COULD be the same as a felony conviction in the civilian world.

Last edited by WALDSCHRAT; 02-03-2014 at 11:34 PM.. Reason: *COULD
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Old 01-31-2014, 2:31 AM
ant21b ant21b is offline
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Quote:
Originally Posted by BCDguy View Post
That is the debate... waiting to see
ATF website says only those discharged under dishonorable conditions are prohibited persons. Bad conduct discharge is not a dishonorable discharge therefore you can posses or own firearms.
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Old 01-31-2014, 3:47 AM
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pastureofmuppets pastureofmuppets is offline
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Quote:
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ATF website says only those discharged under dishonorable conditions are prohibited persons. Bad conduct discharge is not a dishonorable discharge therefore you can posses or own firearms.
Quote:
Originally Posted by WALDSCHRAT View Post
A conviction at a Court Martial is the same as a felony conviction in the civilian world.
Yeah, it's lawyer time. Let us know how it pans out for you.
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Old 02-03-2014, 11:30 PM
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"A general court martial is for felony criminal offenses. There are heavy penalties that can be imposed upon you if you are convicted. This is the type of court martial you will face if you are accused of murder, sexual assault, aggravated assault, drug trafficking or distribution, arson, crimes related to child pornography, and certain high value theft crimes, among others. If you are convicted in a general court martial, you will face extremely heavy penalties.."
http://www.militarylawyers.org/Milit...t-Martial.aspx
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"Question: Is a Court Martial Conviction Considered a Felony?
Answer: It depends. A military court-martial conviction is generally considered a "felony conviction," if the maximum permissible punishment for the offense is one year or more in prison.
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."
http://usmilitary.about.com/od/justi...n/f/felony.htm
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