Posted on 12/02/2002 5:38:33 PM PST by tarawa
Domestic violence gun law can affect soldiers careers
by Spc. Daniel W. Bailey and Cpl. Kyle J. Cosner
Army News Service
A 1996 federal law can jeopardize a soldier's career and inhibit him from fighting in the War on Terrorism if he is convicted of a domestic-violence offense.
Because of an unprecedented number of domestic violence-related homicides at Fort Bragg, N.C., this summer, the Lautenberg Amendment, a law preventing domestic offenders from owning or possessing firearms, has become more of an issue affecting soldiers than ever before, an Army attorney said.
The amendment made it a felony in September 1996 for individuals convicted of misdemeanor crimes of domestic violence to ship, transport, possess, or receive firearms or ammunition. Government agencies, including the Department of the Army, are not exempt from the Lautenberg Amendment, said Capt. Heather Fagan, an attorney with the XVIII Airborne Corps Staff Judge Advocate's Office.
The Department of Defense issued interim guidance Oct. 22, 1997, which outlined steps to ensure DoD personnel do not issue government and privately owned firearms or ammunition to persons whom they know or have reasonable cause to believe have been convicted of misdemeanor crimes of domestic violence.
The policy covers all soldiers -- active, Reserve, and National Guard -- but will affect "a very small percentage" of the total Army, said Maj. Doug Carr, a staff officer within the Pentagon's Office of the Deputy Chief of Staff for Personnel, G1.
"All soldiers having qualifying misdemeanor convictions for domestic violence under the Lautenberg Amendment aren't allowed to possess or handle firearms or ammunition, so this affects them in their capacity within the military to handle a weapon," Carr said.
In fact, the interim Army guidance, put out Jan. 15, 1998, prescribed that commanders would identify these soldiers, Carr said, to ensure they did not have possession of privately owned firearms and ammunition or have access to any firearms and ammunition.
"That meant they could not qualify at a [military firing] range, and had to be assigned to positions which did not allow them to have access to a weapon."
To date, said Carr, the Army has been in compliance with the Lautenberg Amendment. However, he said, with the greatest impacts of the law affecting personnel reassignments and re-enlistments, the Army determined it was necessary to specifically address Lautenberg Amendment-related personnel issues.
Army guidance on deployment eligibility, assignment and reporting of soldiers affected by the Lautenberg Amendment state "a soldier is non-deployable for missions that require firearms and ammunition, and should be assigned, if feasible, to non-tactical units," Fagan said.
However, Fagan said, all soldiers, regardless of the type of assignment, are required to undergo periodic weapons qualification. All soldiers could also be required to take up arms in time of war.
"The implication is soldiers with records of domestic violence who cannot qualify at military shooting ranges cannot be promoted," said Fagan. Nor could such soldiers handle firearms in wartime, she said.
Those enlisted soldiers who have been convicted of domestic violence will be barred from re-enlistment, said Fagan, but will be provided a chance to clear the record.
"They are not allowed to re-enlist, but they may be allowed to extend for one year," she said. "This is to give them the opportunity to get any domestic violence convictions expunged from the record."
A number of options are available to soldiers affected by Lautenberg Amendment penalties who are trying to restore their ability to handle firearms, said Lt. Col. Kevin H. Govern, deputy staff judge advocate at the U.S. Army Special Operations Command at Fort Bragg.
"In addition to expungement, if the offender has been pardoned or had his civil rights restored, then a misdemeanor domestic violence conviction will not then be considered a conviction under federal law to prohibit the possession of firearms and ammunition," Govern said.
The most direct approach to reinstate a soldier's eligibility ... under federal law, following a state misdemeanor domestic violence conviction, is to obtain a certificate of rehabilitation by petitioning a state Superior Court or equivalent, Govern added.
"If they're unable to do this, the year gives them a little time to prepare for transition out of the military," Fagan added.
Fagan stressed the amendment's policies also apply to Army officers.
"Officers would also be non-deployable for missions, since they would be prohibited from having access to firearms or ammunition," she said.
Both officers and enlisted soldiers affected by the new policy will be eligible to apply for a discharge from the Army, Carr said.
Under existing policy, Carr said civilians with court convictions of domestic violence are not eligible to join the Army, whether in an enlisted or officer capacity.
If there is reason to believe a particular soldier may be in violation of the amendment's policies, Govern said that in all cases the unit's commander should consult the Staff Judge Advocate's trial counsel to ensure that the law applies to a soldier before action is taken in compliance with the law.
(Bailey is assigned to the Fort Bragg Paraglide newspaper and Cosner is assigned to the U.S. Army Special Operations Command Public Affairs Office.)
They have a union, and the wheels can be greased (nothing unlawful, just good legal representation at the right time). Dumb law, better to change it than unionize the military.
Does this mean an honorable discharge? It would stink for a soldier who was kicked out of the Army because of the NRA-approved Lautenberg Abomination to forever have his RKBA denied on that basis even after the Supreme Court finally gets enough cajones to strike down that Abomination.
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Personally I don't see how this should affect the military, but it depends on the definition of "possess". A person doesn't own their issue weapon, nor are they even allowed to take it home with them. (With a few notable exceptions). How can they be said to "possess" it? Do I posses the computer I use at work? Does one possess the company car that they drive. I don't think so. Someone needs to kick some JAG rear ends and get this abomination re-interpreted, as applied to the US Military, since the thing was passed and interpreted for the military under the "I loathe the Military" Clinton regime.
I was being somewhat sarcastic when I said "NRA-approved", but if you can find copies of American Rifleman from January 1997 and reading onward, you will find them amazingly silent on the Lautenberg Act while praising the election of a "pro-gun" congress. Although it was "buried in an appropriations bill", GOA knew about it and spread the word to the extent that it could (big topic on talk.politics.guns back then) but the NRA didn't issue any alert or ever acknowledge its existence) and it passed in the Senate 98-0.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.