Question About Dishonorable Discharge and Being a Prohibited Person

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.
 
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.
 
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
 
"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?


Willie


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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".
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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).
 
The code of federal regulation defines "disharged under dishonorable conditions" to include the dismissal of a commissioned officer pursuant to sentence by a general court martial. 27 CFR 478.11

The ATF adopted this definition after the DOD commented on the ATFs proposed definition, excluding dismissals, and indicated that the DOD considered a dismissal to be the equivalent of a dishonorable discharge. The DOD also believed such a definition would lead to unfair application of the law to enlisted members but not officers convicted of the same offenses. The ATF adopted a definition that includes dismissals. http://www.ttb.gov/rrd/tdatf391.htm

The instructions to members contained in DA Pam 27-9, Military Judges Benchbook, regarding a dismissal are instructive:

This court may adjudge a dismissal. You are advised that a sentence to a dismissal of a (commissioned officer) (cadet) is, in general, the equivalent of a dishonorable discharge of a noncommissioned officer, a warrant officer who is not commissioned, or an enlisted service member. A dismissal deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Army establishment. It should be reserved for those who in the opinion of the court should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment. Dismissal, however, is the only type of discharge the court is authorized to adjudge in this case.
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I did a quick search and couldn't find any court opinions deciding whether or not a dismissal makes one prohibited from possessing a firearm. This could be because when an officer is dismissed they have usually been convicted of a crime punishable by a term of imprisonment of more than one year. Why charge under 922(g)(6) when you can just as easily charge and convict under 922(g)(1). Also the ATFs definition seems spot on and probably would be well accepted in the federal courts.
 
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I guess the Honorable discharge statement on my DD314 is incorrect. Granted unless we resign we do not receive the nice certificate that enlisted do. That comes when we are transferred to the Retired list at age 60.

Technically you may be right as officers convicted by general Court are reduced to E-1.
 
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