The Lautenberg Amendment and Its Effect on Military Service

The Lautenberg Amendment is an amendment to the Federal Gun Control Act of 1968. It became effective in 1996 and makes it a felony for anyone convicted of a “misdemeanor crime of domestic violence” to ship, transport, possess, or receive firearms or ammunition. There is no exception for military personnel or military issued weapons. The Amendment also makes it a felony for anyone to sell or issue a firearm or ammunition to a person with such a conviction. This includes commanders and NCOs who furnish weapons or ammunition to servicemembers knowing, or having reason to believe, they have qualifying convictions.

What is a qualifying conviction?
A conviction of a “misdemeanor crime of domestic violence” is a qualifying conviction under the Lautenberg Amendment. The Amendment itself does not provide any additional guidance on determining what qualifies as a crime of domestic violence. However, each of the armed services has published regulations to define what is considered domestic violence with little variance among them. For example, the Marine Corps in MARADMIN 186/03 further defines what qualifies as a crime of domestic violence as follows:

Crime of domestic violence means an offense that has as its factual basis the following elements: (1) the use or attempted use of physical force, or threatened use of a deadly weapon; (2) committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shared a child in common, by a person who has cohabitated with the victim as a spouse, a parent or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim(s).

What effect does this have on your military career?
If you are in the armed services, the glaring side effect of being on the receiving end of a qualifying conviction is your inevitable separation from the military.  In other words, if you are convicted at a special or general court-martial for a domestic violence offense, you will be processed for separation.  Administrative forums such as non-judicial punishment (NJP) do NOT trigger Lautenberg.  But if you are going to a court-martial, be sure to ask your attorney about the Lautenberg Amendment and how it can affect you.  It is normally not part of any pre-trial agreement, so ask your attorney about it before entering into an agreement to plead guilty.

What if you are convicted of simple assault and not domestic violence?
Many states have specific provisions in their penal code for domestic violence offenses. Many accused in civilian courts will plea bargain to plead guilty to a simple assault offense instead of a domestic violence offense. This is done normally to avoid requirements to attend mandatory counseling or classes that often go along with domestic violence convictions. Pleading guilty to a simple assault can still qualify for a conviction of a “misdemeanor crime of domestic violence” for purposes of the Lautenberg Amendment. Many attorneys are not aware of this and do not appreciate the impact such a conviction will have on a servicemember. Military policy is to look at the factual basis of the offense. If that factual basis meets the definition, it will be a qualifying conviction regardless of what the civilian court calls the offense.

What about deferred adjudication?
Deferred adjudication is available in some civilian jurisdictions. It often involves probation, treatment programs, and/or some type of community supervision. If all the conditions of probation are met for the allotted time handed down by the court, then the charge will be dismissed and no record of a conviction will result. In that case, the Lautenberg Amendment will not apply as the charge did not result in a conviction. However, if the accused does not satisfy the court’s requirements during the probationary period, then the charge will not be dismissed and it will ripen into a conviction, at which point the Lautenberg Amendment will apply.

What will happen if you have a qualifying conviction?
If you have a qualifying conviction, you are not allowed to possess a firearm or ammunition. If your command suspects that you may have a qualifying conviction, they are obligated to immediately secure your access to any government issued firearms or ammunition (unless you are deployed) and privately owned firearms or ammunition kept in government housing or the base armory. You will be referred to the command’s staff judge advocate (SJA) to determine if you have a qualifying conviction. If you do, you will be unable to complete annual training requirements that will require the use of firearms or ammunition (e.g., marksmanship training). Your command may also consider you non-deployable. Major military weapons, or crew-served weapons, are not considered to be firearms for the purposes of the Lautenberg Amendment and you may still work on and around those items.

If you are in the armed services, a qualifying conviction under the Lautenberg Amendment can end your career and result the loss of almost all of you benefits. So, before sign what you think is a “good deal” make sure you are asking the right questions. Ask about the Lautenberg Amendment and how your conviction can affect your military career.

If I’m Innocent, Why Should I Remain Silent?

As an attorney who regularly represents servicemembers, the simplest but most critical piece of advice I offer to military personnel is often the one most commonly ignored: to remain silent. It is one of the most basic constitutional rights afforded to us, so why do members of the armed services, those charged with upholding the Constitution, have such a hard time exercising this right?

Because from day one of training, we who serve are taught to do what we’re told. “Good” Soldiers, Sailors, Airmen, and Marines should always answer questions put to them, right? Wrong.

If you are suspected of committing an offense under the Uniform Code of Military Justice (UCMJ), you must exercise your right to remain silent. It will never help you to make statement. Yes, your superiors and interrogators will imply that you are guilty. Yes, you will hear things like “if you didn’t do it, just tell us the truth about what happened.” It goes against everything you are taught about obeying orders and doing what you are told. You must fight that instinct. Under Article 31(b) of the UCMJ, you have an absolute right to remain silent.
But if you know you didn’t do anything, why not say so? Because you do not know the law. Moreover, your superiors and interrogators do not necessarily know the law. For example, one of the most commonly charged offenses in the military justice system is sexual assault under Article 120 of the UCMJ. This one offense occupies 17 pages of the Manual for Courts-Martial (MCM) … 17 pages of legal definitions and different versions of sexual assault. As a trained lawyer who has defended many Marines charged with sexual assault, even I open up the MCM to Article 120 and review the specific elements and definitions. Every time. The law has more gray area than you can navigate with a well thought-out explanation of what happened. If you say nothing, nothing can be used against you. More importantly, your silence cannot be used against you.
Even a simple response like “it never happened” can get you into trouble. Under Article 107 of the UCMJ, you can be charged with making a false official statement for simply denying that anything happened.
So, if you find yourself suspected of committing an offense, the right answer every time, in a respectful tone, is “I respectfully desire to remain silent”. And then, give me a call.