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Old August 6, 2012, 05:48 PM   #1
sigcurious
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Question About Dishonorable Discharge and Being a Prohibited Person

I was reading an article, about the guy who shot up the Sikh temple in WI. In one part they stated he had legally purchased to pistol, in another they stated he had been dishonorably discharged from the army.

Assuming the facts are correct in regards to the above, is there something I'm missing? I thought a dishonorable discharge made for a prohibited person?
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Old August 6, 2012, 05:56 PM   #2
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It was a general discharge...

Not a dishonorable discharge, just a general discharge and was barred from reenlistment.
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Old August 6, 2012, 05:58 PM   #3
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Ahh well that clears that up. Jeez I wish reporters would get facts like that straight.
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Old August 6, 2012, 06:04 PM   #4
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Many people are confused by this. There are several types of military discharge, with dishonorable being the equivalent of a felony in civilian life.

Page received a bad conduct discharge, which is one rung up on the ladder.
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Old August 6, 2012, 06:16 PM   #5
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I remember being told once that even if you do get a dishonorable, that a review board would usually change it to general after so long.
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Old August 6, 2012, 09:46 PM   #6
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you have to be a pretty special person to get a dishonorable discharge which is handed down by a general court martial which means you did something pretty bad. I have seen General and Other than Honorable used a lot. I think you have to wait 15 years to try and appeal it to a board. The gist of the appeal is that you have to prove you were innocent of the charges of the general court martial. Which ain't going to happen unless you have new evidence to prove your innocence.
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Old August 6, 2012, 10:48 PM   #7
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A review board has no authority to change a dishonorable discharge.

Such a discharge is a court martial sentence. The 4 courts of criminal appeal and the court of appeals for the armed forces can reduce the sentence but reducing a dishonorable discharge is rare because of the offenses for which they are usually issued.

Dishonorable discharges are most commonly handed out to those convicted of violent crimes against persons, child pornography, and very egregious property offenses.

A court martial may also sentence someone to a bad conduct discharge (BCD) which is less severe. But most of the time a person receiving a BCD will still be a prohibited person because the offense for which they are sentenced is usually punishable by more than a year in jail. While it is possible to get a BCD for a less than one year offense, most of the time the command just offers them nonjudicial punihsment and then administratively discharges them and courts martial rarely grant punitive discharges for minor offenses.

The three levels of administrative discharge are Honorable, General (Under Honorable Conditions), and Under Other than honorable conditions (OTH). An OTH may only be issued after the respondent receives a hearing before an administrative separation board unless waived.

An administrative discharge can be appealed to each services discharge review board. If I remember correctly the request for review must be filed within 15 years. They can also be reviewed by each services board for the correction of military records. (I call them god boards because they can do just about anything except review courts martial)

Back in May I represented someone before the Army discharge review board. Upgrade is not automatic and the board gives a great deal of deference to the decision of the separation authority.

We lost on a 3-2 vote even though I felt like we had a very strong case (Officer and Enlisted allegedly have improper relationship, Enlisted gets Article 15 and a General Discharge while officer gets a reprimand and sent home form theater with an honorable discharge). Now granted his career is over but he has an honorable discharge and she doesn't.

The administrative boards really don't care if you "did it" what they want to know is why was your discharge unfair or what have you done since discharge to justify an upgrade.

Sorry about the novel but it's my area of expertise.
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Old August 6, 2012, 10:59 PM   #8
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My recollection from several decades ago was that they went

Honorable
General
Undesirable
Bad Conduct
Dishonorable

There was such thing as an "adminstrative" discharge, but it referred more to a process than the final designation.

OTH is new to me.
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Old August 6, 2012, 11:10 PM   #9
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Administrative discharge refers to a discharge issued under the services administrative regulations.

This is in contrast to a punitive discharge issued pursuant to sentence by a court martial.
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Old August 7, 2012, 07:21 AM   #10
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I'm aware Wikipedia isn't considered a reliable source of information, however this entry seems to follow everything else I can find on the types of discharges in the United States:
http://en.wikipedia.org/wiki/Military_discharge
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Old August 7, 2012, 08:05 AM   #11
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Silver Bullet, the first three types of discharges (Honorable, General, and Other than Honorable) are ALL administrative discharges. The last two are punative discharges.
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Old August 7, 2012, 09:19 AM   #12
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That makes sense. I just never saw that distinction before.
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Old August 7, 2012, 04:13 PM   #13
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A dishonorable will not come without a court martial. The court martial will be a felony offense that will prohibit ownership.

A court martial does not have to order a discharge (rare). The person can be punished and continue to serve. However it may still be a felony conviction.
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Old August 7, 2012, 04:22 PM   #14
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Quote:
Ahh well that clears that up. Jeez I wish reporters would get facts like that straight.
Aw C'MON - why would they want to let the facts get in the way of their agenda-pushing story line?
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Old August 7, 2012, 05:05 PM   #15
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Quote:
The court martial will be a felony offense that will prohibit ownership.
I seem to recall somewhere that this varies from state to state (and perhaps even from offense to offense). That makes sense considering wide lattitude of offenses for which you could get court martialed. Consider the case of one person boinking a prohibited person (i.e. disproportionate rank). While those cases are normally handled administratively they are theoretically subject to a courts martial. I would hate to think that a 2nd ammendment right would be denied simply because someone was boinking the wrong person.
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Old August 7, 2012, 05:21 PM   #16
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There is non judicial and judicial punishment in the military. There are three types of Court Martial. General Court Martial is the highest level.

You get a dishonorable discharge as part of your sentence from a General Court Martial which is just like a civilian criminal court.

The only way you are going to appeal that is to provide new evidence that you are innocent of the charges. You cant just appeal it. I think you might even have to wait 15 years to take it to the board for appeal.

It might vary from state to state but if you look at the ATF Form you have to answer in the affirmative or negative as to whether you were dishonorably discharged. That information is probably part of the FBI and law enforcement database for doing a background check. Its a federal law.
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Old August 7, 2012, 06:05 PM   #17
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I just did some searching and while I was right about the dishonorable discharge being considered a felony only in some states, I found that in all cases a dishonable discharge is a bar to firearms ownership based on the GCA of 1968.

It looks like this lunatic shouldn't have had a firearm in the first place.
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Old August 7, 2012, 07:20 PM   #18
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Quote:
Originally Posted by Eghad

The only way you are going to appeal that is to provide new evidence that you are innocent of the charges. You cant just appeal it. I think you might even have to wait 15 years to take it to the board for appeal.
This is not true. Every court martial conviction that includes confinement for more than one year or a punitive discharge is required to be reviewed by that services court of criminal appeal.

While the courts of criminal appeal generally follow the same rules that civillian appeals courts do there are some differences.

1. The appeals court may only approve findings and sentences that are correct in law and fact. This means that when a case is reviewed each judge on the panel must decide whether or not they are conviced of the accused's guilt in addition to looking at errors of law.

2. The appeals courts review all guilty pleas to determine whether or not the plea was provident. Basically if the defendant doesn't admit to all of the elements in their own words and disavow all defenses. Many guilty pleas have been rejected or overturned. (see Lyndie England whose guilty plea was rejected because one witness at sentencing testified that PFC England was just doing what she was told.)

3. If they dismiss any charges or specifications the courts often just reassess the sentence instead of returning the case.

A dishonarable discharge is not considered a felony. It is a prohibited category under the GCA. If one is convicted by a court martial and was represented by counsel then it is treated just like a federal conviction. In the military justice system the accused enjoys substantially similar, and in some cases greater, due process when compared to defendants in federal court.

The right to counsel, grand juries (Article 32 hearings at which the accused gets to appear and question witnesses), right against self incrimination, jury trial (though not applicable it is still afforded to the accused), government must prove guilt, etc.

The key difference is that a 2/3's vote is needed to convict and 1/3 +1 vote to acquit.

Theoretically any court martial conviction makes one a prohibited person because the language of the UCMJ states "whoever [insert decription of offense] shall be punished as a court martial directs." The only limits on the length of sentence come from the fact that the president, in his capacity as the most senior court martial convening authority and pursuant to authority from congress, has promulgated limits for offenses in the manual for courts martial. Every court martial offense is theoretically punishable by confinement of over one year and an accused merely receives the benefit of preemptive clemency.

The only sentence that is specifically limited in the text of the UCMJ is death Congress has specifically stated "shall suffer death or other punishment as directed by a court martial" on death sentence offenses.
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Old August 7, 2012, 08:53 PM   #19
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First: General discharge can be for something as simple as being overweight or failing several PT tests in a row. It can be for other (more serious) reasons also, but a general discharge is not that damaging to a person. Usually being barred from reenlistment is not much of a problem either...again, depends on why...overweight...just loose the extra weight.

BTW: a person can request a court martial to clear their name too, not just because they have been charged with something.
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Old August 7, 2012, 09:33 PM   #20
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Interesting trivia that only enlisted personnel are subject to this, as comissioned officers are not "discharged" and thus are never given a "dishonorable discharge".

Officers are "separated" (or resign) and there are no degrees or separation, as far as I am aware of.


Experts?


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Old August 7, 2012, 09:48 PM   #21
vranasaurus
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I spent 8 years as a paralegal in the Army and have worked the court martial and adverse administrative processes.

The only people who can request a court martial are commissioned officers summarily dismised by the president. I am unsure what provision of the law would be used by the president to dismiss the officer since a dismissal may only be given as a sentence at court martial. To dismiss an officer before trial would seem to violate article 13's prohibition on pre-trial punihsment.

Even in that case the officer must be charged and the charges referred to a court martial.

The only other time you can request trial is if your offered non-judicial punishment. You can turn down NJP, unless embarked on a vessel, but most of the time the limits on punihsment coupled with the fact that the article 15 is not under any circumstances a conviction render a decision to do so very imprudent. Plus the offenses are usually so minor that turning it down is liek throwing down the gauntlet and daring the command to try you. Most of the time they will because they want to make a point that if you turn it down you will be tried. Most of the time you shouldn't turn down NJP anymore than you would poke a grizzzly bear with a stick.
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Old August 7, 2012, 10:12 PM   #22
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Officers recive a dismissal which has the same legal effect as a dishonorable discharge.

18 USC 922g(6) prohibits possession of a firearm by anyone who has been discharged under dishonorable conditions.
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Old August 8, 2012, 12:35 AM   #23
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Been a while since I thought about this so I did some research.

1) Officers receive the same type of discharges as enlisted. They traditionally have a tougher time than an enlisted man while the process is winding it way through the system. Court Martial sentences generally reduce them in rank to E-1 and assign a Dishonorable discharge.

Following is a discussion.




by Legal Intern Emily Wilson
354th Fighter Wing Judge Advocate Office

10/1/2008 - EIELSON AIR FORCE BASE, Alaska -- A military discharge is given when a member of the Armed Forces is released from their obligation to serve. There are five ways to characterize a discharge: Honorable; General (under honorable conditions); Under Other than Honorable Conditions (UOTHC); Bad Conduct; and Dishonorable. The first three are given when a service member is administratively discharged, while the latter two are the outcome of the judicial process.

This is one of the best discussions on the subject I have read.
http://www.eielson.af.mil/news/story.asp?id=123117744
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Old August 8, 2012, 09:39 AM   #24
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"Officers receive the same type of discharges as enlisted"


Think that a little re-research would find that this is not so. They are either "Dismissed" or they 'Resign". They do not receive a "Discharge".


Dismissal is punative. But the GCA does not, as far as I know, so state it to be a condition that by itself causes one to be a prohibited person insofar as the GCA is concerned as opposed to a Dishonorable Discharge, which clearly does stand by it's own as a prohibition under the GCA.

Hypothetical is that two men are charged with Adultry under the UCMJ. One, a NCO, is tried at General Court Martial and is convicted and discharged dishonorably. He is now a prohibited person under the GCA. An officer is also charged the same way, with "conduct unbecoming an officer" tossed in for good measure. He is "Dismissed" after he is convicted. My reading is that he is not a prohibited person under the GCA.


Experts?


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Old August 8, 2012, 11:04 AM   #25
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Think that a little re-research would find that this is not so. They are either "Dismissed" or they 'Resign". They do not receive a "Discharge".
They are also "released" meaning no longer requiring service. Their commision can also be "revoked" which is a purely administrative not punative procedure.

For example, I was a commissioned Naval Officer on active duty. I was released into the inactive reserve under the Graham-Rhudman budget reduction but still held my commission. About 3 years later, my commision was revoked because I went through two promotion cycles (while on inactive reserve) without being selected for promotion to the next paygrade (Navy has a rule that an officer cannot go through two 'in the zone" cycles without promotion and still keep his commission).
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