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Armed Forces and the Lautenberg Amendment

Lautenberg Amendment

The Lautenberg Amendment to the Gun Control Act of 1968, effective 30 September 1996, 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. Soldiers are not exempt from the Lautenberg Amendment.

Summary court-martial convictions, nonjudicial punishment under Article 15, UCMJ, and deferred prosecutions (or similar alternative dispositions) in civilian court do not constitute qualifying convictions within the meaning of the Lautenberg Amendment. The prohibitions do not preclude a soldier from operating major weapons systems or crew served weapons such as tanks, missiles, and aircraft. The Lautenberg Amendment applies to soldiers with privately owned firearms and ammunition stored on or off post.

Army policy is that all soldiers known to have, or soldiers whom commanders have reasonable cause to believe have, a conviction of a misdemeanor crime of domestic are non-deployable for missions that require possession of firearms or ammunition. Soldiers affected by the Lautenberg Amendment are not eligible for overseas assignment. However, soldiers who are based outside the continental United States (OCONUS) will continue to comply with their assignment instructions.

Soldiers with qualifying convictions may not be assigned or attached to tables of organization and equipment (TOE) or modified TOE (MTOE) units. Commanders will not appoint such soldiers to leadership positions that would give them access to firearms and ammunition. Soldiers with qualifying convictions may not attend any service school where instruction with individual weapons or ammunition is part of the curriculum.

Soldiers whom commanders know, or have reasonable cause to believe have, a qualifying conviction may extend if otherwise qualified, but are limited to a one year extension. Affected soldiers may not reenlist and are not eligible for the indefinite reenlistment program. Soldiers barred from reenlistment based on a Lautenberg qualifying conviction occurring after 30 September 1996 may not extend their enlistment. However, such soldiers must be given a reasonable time to seek removal of the conviction or a pardon.

Officers are subject to the provisions of the Lautenberg Amendment like any other soldier. The effects of are somewhat different if an officer has a qualifying conviction. Officers may request release from active duty or submit an unqualified resignation under AR 600-8-24, Officer Transfers and Discharges.

If you fail to meet the above listed standards, you would need a moral waiver in order to join the military.

Moral Waivers

If you need a waiver, that means you are ineligible to join the military. The waiver is the process of you asking the service to make an exception in your particular case. The recruiter is the first step. Only a military recruiter can initiate a moral waiver request. Keep in mind this is the recruiter’s decision, not yours. There is no right to have a moral waiver processed. If the recruiter doesn’t think there is a good chance of approval, he/she doesn’t have to waste time by submitting one on your behalf.

One primary consideration is the current recruiting needs of the service branch. If they are doing well meeting their recruiting numbers, the chances of waiver consideration/approval go down. If the service is struggling to meet their recruiting needs, the chances of waiver consideration/approval goes up.

The Army has the reputation of approving the most moral waivers. The Air Force and Coast Guard approve the fewest. The Navy and Marine Corps fall somewhere in between. However, that’s not always the case. There have been times, during extremely good recruiting periods, where the Army won’t consider any applicant who needs a moral waiver, at all.

Another important factor is how attractive of an applicant you are to the service. Generally, those with high ASVAB AFQT scores and/or a high school diploma/college credits have a higher chance of favorable waiver consideration than a candidate who scores low on the ASVAB, and/or has a GED.

Other factors include the seriousness of the criminal offense(s), how old you were when it happened, and how much time has passed since then. There are some categories where I feel safe to say are virtually never considered for waivers:

  • Adult felonies. The services almost never (I’m tempted to say never) consider waivers for felony convictions that happened as an adult.
  • Juvenile felonies that involved violence.
  • Offenses involving the sale or transfer of illegal drugs.
  • Sex offenses.
  • Domestic violence that falls under the Lautenberg Amendment. The 1996 Lautenberg Amendment to the Gun Control Act of 1968 makes it unlawful for anyone who has been convicted of a misdemeanor of domestic violence to possess firearms. If you can’t carry a firearm, you’re not worth very much to the military.

The waiver process is very subjective. More serious offenses require a higher level of approval in the recruiting chain-of-command than less serious offenses. However, regardless, a human being (usually a commanding officer) is going to make the final decision, and humans are usually more subjective than they are objective. For example, let’s say your offense was burglary, and the final approval authority — some colonel –had his house robbed. Do you think he’s going to look kindly on a burglary waiver?

Appeals

If your waiver is disapproved, there is no appeal process. Several people have asked me about writing their congressman or senator, and you can certainly do so. But, in my opinion, it’s a waste of time when it comes to disapproval of waivers. Congressional inquiries can be beneficial if the military does something wrong (against the law or against regulations), but the military does not have to approve (or even consider) your waiver. If your congress-critter does make an inquiry, the military is simply going to say, “we looked into it, and decided not to approve/consider the waiver,” and that will be the end of it.

One thing you can do is to check with a different service branch. Waiver decisions are only valid for the branch who made it. In other words, if the Air Force disapproved your moral waiver request, the Navy still might approve it.

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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