A suburb of San Antonio. Twenty six souls lost. Potentially stopped by a mythical “Good Guy” with a gun. Purported Air Force veteran, discharged under some sort of less than honorable circumstances, possibly targeting his ex-wife’s family, which, one could assume, he felt was the source of his troubles, given the reported reasons for his discharge.
So at best it’s unclear. But the charges of domestic violence and the release from the military should have, at least to a layman, triggered some action when he bought the rifle from a local Academy Sporting Goods store, a licensed FFL that would have completed a form 4473 background check, and gotten a response from the NICS.
Lets take the Form 4473, and its associated clarification:
A member of the Armed Forces must answer “yes” to 11.b. or 11.c. if charged with an
offense that was either referred to a General Court Martial, or at which the member
was convicted. Discharged “under dishonorable conditions” means separation from
the Armed Forces resulting from a dishonorable discharge or dismissal adjudged by a
General Court-Martial. That term does not include any other discharge or separation
from the Armed Forces.
So it’s complicated, but actual Dishonorable Discharges are treated as felonies (and rare) under the Uniform Code of Military Justice – the military version of the criminal code, and Bad Conduct Discharges are treated as misdemeanor equivalents. And although the NICS bans anyone with a sentence for imprisonment of more than a 1 year period in the civilian world, it seems Bad Conduct Discharges don’t get reported to the NICS regardless of the length of time served.
To make matters worse, Domestic Violence complaints are often administrative discharges without court-martial. Normalizing this would require that ALL sustained domestic violence charges should need to be referred to a court-martial with any resulting discharge becoming a disqualifying event under the form 4473.
Domestic violence is such a common occurrence in the military that the Department of Defense (DOD) has made Domestic Violence an item of specific concern. First Sergeants and Military Police, like their civilian counterparts, despise calls to domestic violence scenes because the “victim” is often unclear, there are rarely any clear-cut solutions, and when there does appear to be a “victim,” more often than not, they will refuse to file a complaint, statement, or even cooperate for a variety of reasons including: “it was a simple argument,” or not wanting to harm their or their spouse’s military career.
Domestic violence in the U.S. military has become a focus for the Department of Defense as awareness of the issue has grown. Domestic violence is a complicated problem and when it involves a service member, how it is handled can be a complex process and one that the victim may not understand.
It goes without saying domestic violence is an unfortunate and illegal activity that carries with it heavy consequences. Extensive literature exists pertaining to the societal repercussions from domestic violence. Volumes of legal texts outline the civilian process and punishments regarding domestic violence.
In the civilian world, domestic violence comes in two flavors: misdemeanors and felonies. Misdemeanors are criminal violations with punishments of incarceration for a period of one year or less. Misdemeanors may also carry financial penalties such as fines. The heavy sentences, more than one year imprisonment, results from felony convictions.
The Lautenberg Amendment to the Gun Control Act of 1968 became effective Sept. 30, 1996. This Amendment makes it a felony for those convicted of misdemeanor crimes of domestic violence to ship, transport, possess or receive firearms or ammunition. The Amendment also makes it a felony to transfer a firearm or ammunition to an individual known, or reasonably believed, to have such a conviction.
To be clear, there is no direct domestic violence charge in the UCMJ. If the solidier, sailor, Marine or Airman is charged in a civilian court, that invokes Lautenberg, but if its a military court, they seem to mostly use article 92 to punish people guilty of this “unfortunate” crime.
“Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.”
This article of the Uniform Code of Military Justice is a catch-all for offenses that are not spelled out elsewhere. It covers all conduct that could bring discredit upon the armed forces that are not capital offenses. It allows them to be brought to court-martial.
(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.
(b) Any person subject to this chapter who–
(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or
(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon;
is guilty of aggravated assault and shall be punished as a court-martial may direct.
Of course, I am not a military legal scholar, or a practicing attorney, so perhaps I have missed something, and there is an appropriate domestic violence charge, and those convictions are reported to the NICS. But that would mean the FFL skipped that all important background check via the form 4473. Federal Firearms Licensees never do that. Oh wait…
This seems to be a place where Congress can act, today and begin taking accounts of assault and domestic violence by military personnel seriously. But the military has been grappling with this for years, not very successfully I might add. If anyone more familiar with military law has more or better information, please reach out.
In fact, it would help if we started taking domestic violence seriously in the civilian world too- there are reports the Vegas murderer abused at least his girlfriend and nothing was done, then this asshole shows up at his in-laws church and murders 26 people.
If only we could have stopped them…
Enforce the laws, fix the laws, stop letting jerks who harm family members plead to lesser charges. Do that before you put another set of poorly worded laws on the books. Save some lives. Don’t just use it to advance a political agenda, regardless of who holds the White House.
Fund the ATF, fund the DOJ, fund the NICS. Fix Domestic Violence statutes in the military, enforce reporting at the federal and state levels. Start actually doing something instead of fantasizing about making firearms go away.