Which Military Veterans are Actually Prohibited Possessors under the Gun Control Act?

This guest post does not necessarily represent the views of the Duke Center for Firearms Law. 

Bruen isn’t alone in limiting enforcement of the Gun Control Act. Police, prosecutors, and lower court judges might consider how their own interpretation and practice in prohibited person cases have shaped the scope of status-based bans to something far from the initial legislative intent. Nowhere is that clearer than with 18 U.S.C. § 922(g)(6), which prohibits gun possession by military veterans discharged under “dishonorable conditions.” This prohibition is misunderstood and underutilized. A faithful interpretation of § 922(g)(6)’s text and history indicates it was meant to encompass significantly more veterans than the subset against whom it is currently enforced.

Most (understandably) equate “dishonorable conditions” in § 922(g)(6) to Dishonorable Discharge. A Dishonorable Discharge is a punitive form of separation from service, awarded only at a general court-martial (the most severe type of court-martial) and appropriate for felony-equivalent offenses or other military offenses requiring significant punishment. But military discharges and characterizations of service are not limited to a binary distinction between Honorable and Dishonorable Discharge. A court-martial can alternatively award a Bad Conduct Discharge (BCD) in most cases—a lower form of punitive discharge appropriate for non-felony misconduct or repeated minor offenses. The term “Dishonorable Discharge” does not even encapsulate the entire universe of most-serious punitive discharges either. A Dishonorable Discharge is only authorized for enlisted servicemembers; the Dishonorable Discharge equivalent for officers—equal in severity and impact—is Dismissal. 

Administrative (i.e. non-punitive) discharges can also come with multiple labels short of honorable. An Other-than-Honorable (OTH) characterization of service is appropriate following administrative separation for servicemembers demonstrating significant departure from military standards. Frequently, one receives an OTH following an involuntary administrative separation (ADSEP) for (sometimes serious or repeated) misconduct. An OTH is awarded outside the court-martial process. Servicemembers who are involuntarily ADSEP’d for misconduct or performance issues undergo a brief arbitration-style nonjudicial proceeding called an ADSEP Board. At the ADSEP Board, a panel of three senior servicemembers determine, by a preponderance of the evidence, whether the member should be separated and how their service should be characterized (i.e. Honorable or OTH).[1] 

Few reported court opinions have considered § 922(g)(6) at considerable length. In the most notable recent § 922(g)(6) case, Jimenez, the Second Circuit in 2018 affirmed the conviction of a dishonorably discharged Marine veteran for unlawfully possessing a firearm and ammunition. Perhaps more intriguing than the Jimenez court’s holding and analysis (likely abrogated following Bruen) is a footnote discussing other forms of discharge. The Jimenez court noted:

There are two other forms of “punitive separation”: a “dismissal,” which is reserved for commissioned officers, and a “bad-conduct discharge,” which is generally for less serious offenses. The legislative history of Section 922(g)(6) suggests that all of these discharges as well as any other discharge “on conditions less than honorable” were meant to be included. Because Jimenez was dishonorably discharged, we focus on that form of separation. We leave it up to future courts to determine which others fall within the meaning of “discharged from the Armed Forces under dishonorable conditions.” [2]

The Second Circuit was on to something here, although the opinion misses some nuance in § 922(g)(6)’s legislative history. The Jimenez footnote refers to the original language of the Gun Control Act, which prohibited firearm possession by those discharged from the armed forces under “other than honorable conditions.” Senator Russell Long, who championed the relevant provision that ultimately became § 922(g)(6), specifically noted that it was meant to prevent firearm ownership by those who received a “bad conduct discharge, or . . . agreed to resign from service on conditions less than honorable.” 

But thirteen months later, the statute was amended to replace “other than honorable conditions” with the current “dishonorable conditions” language. Senator Olin Teague offered the amendment to “conform the description of concerned veterans . . . with the description of veterans eligible for veterans’ benefits under title 38, United States Code, section 101(2).” Thus, “dishonorable conditions” should reflect existing law on veterans’ benefits. Sure enough, 38 U.S.C. § 101(2) defines a “veteran” as one released from service “under conditions other than dishonorable.” So, “dishonorable conditions” in § 922(g)(6) appears inexorably linked to the eligibility of a “veteran” for VA benefits under Title 38. But what are “dishonorable conditions?”

Veterans’ benefits law helps answer this question. 38 C.F.R. § 3.12 describes statutory and regulatory bars to benefits for those discharged or released “under conditions other than honorable.” Specifically, sections 3.12(c) and (d) describe conditions of discharge that would be considered “dishonorable”: conscientious objection, any sentence by a general court-martial, resignation for the good of the service, an OTH following 180 or more days absent without leave (AWOL), an OTH separation awarded in lieu of trial by court-martial, committing mutiny, espionage, spying, offenses involving moral turpitude, or other willful and persistent misconduct.[3] This list necessarily includes modes of separation other than a Dishonorable Discharge. For one, it specifically lists OTH—an administrative discharge awarded without any court-martial proceeding. It also describes misconduct that can be resolved without any punitive discharge (or indeed, that requires no punitive discharge, such as separation by OTH in lieu of court-martial). 

Each of the substantive offenses listed could be disposed of in an ADSEP Board proceeding. As a JAG, I frequently saw and participated in ADSEP Boards for offenses involving moral turpitude, persistent and willful misconduct, and lengthy AWOL periods. That any general court-martial sentence serves as a statutory bar to benefits and is a basis for “dishonorable” conditions of discharge is illustrative. A general court-martial may award a Dishonorable Discharge but frequently does not, despite finding guilt and imposing a sentence. The general court-martial might award a BCD or no punitive discharge at all. But such a result would still mean the member was discharged under “dishonorable” conditions. The Federal Circuit has upheld the VA’s definition of “dishonorable conditions” as distinct from a Dishonorable Discharge. It has also upheld determinations characterizing service as “dishonorable” upon finding a basis in 38 C.F.R. § 312, despite the absence of a Dishonorable Discharge. 

A prior post noted that at least one study indicates dishonorable dischargees account for only 0.1% of military veterans. That same study reports that 6.7% of servicemembers are separated with a BCD or OTH. Some data from the study also indicate that the vast majority of veterans receiving BCDs or OTH separations could qualify for disarmament under § 922(g)(6) for discharge under “dishonorable conditions.” On appeal from VA determinations of eligibility, BCD and OTH recipients were determined to have been separated under “dishonorable” conditions in 91.1% and 86.9% of cases, respectively. 

It’s difficult to fault courts interpreting the GCA (or police enforcing its provisions) for thinking § 922(g)(6) applies only to dishonorable dischargees. Few understand the distinction between conditions that are “dishonorable” and the military term-of-art Dishonorable Discharge. Fewer still are  familiar with the nuanced layers of punitive and administrative military discharge characterizing veterans’ service. And determining whether a veteran’s discharge was under “dishonorable conditions” might require service branches to regularly disclose more information on characterizations of service and discharge than current practice indicates. But given the prevalence of veteran mass shootings, [4] and at least one study indicating that nearly half of the veteran population owns guns, public safety and faithful application of the law merits getting the language and scope of § 922(g)(6) right.