R 211139Z APR 03 FM CMC WASHINGTON DC(uc) TO ALADMIN(uc) BT UNCLASSIFIED ALADMIN 186/03 GENADMIN/CMC WASHINGTON DC MPO// SUBJ/POLICY FOR IMPLEMENTATION OF THE LAUTENBERG AMENDMENT// REF/A/DOC/ASD/22OCT1997// REF/B/CMC WASH DC 221220ZDEC2001// REF/C/DOC/USD/27NOV2002// REF/D/DOC/CMC/30MAY2001// NARR/REF A IS ASSISTANT SECRETARY OF DEFENSE (ASD) MEMO OF 22 OCT 97, DOD INTERIM POLICY FOR IMPLEMENTATION OF DOMESTIC VIOLENCE MISDEMEANOR AMENDMENT TO THE GUN CONTROL ACT FOR MILITARY PERSONNEL. REF B IS ALMAR 290/98, IMPLEMENTATION OF THE LAUTENBERG AMENDMENT. REF C IS USD MEMO OF 27 NOV 2002, DOD POLICY FOR IMPLEMENTATION OF DOMESTIC VIOLENCE MISDEMEANOR AMENDMENT TO THE GUN CONTROL ACT FOR MILITARY PERSONNEL. REMKS/1. PURPOSE. THIS ALADMIN REITERATES PROVISIONS WITHIN REF B AND PROVIDES ADDITIONAL GUIDANCE FOR COMMANDERS TO IMPLEMENT THE DOMESTIC VIOLENCE AMENDMENT TO THE GUN CONTROL ACT AND DOD POLICY FOR MILITARY PERSONNEL. THIS ALADMIN CANCELS REF B. 2. EFFECTIVE DATE AND APPLICATION. THIS ALADMIN IS EFFECTIVE IMMEDIATELY AND APPLIES TO ALL ACTIVE DUTY AND RESERVE MILITARY PERSONNEL. 3. BACKGROUND A. THE GUN CONTROL ACT OF 1968 (18 U.S.C. 922), AS AMENDED 30 SEP 96, MAKES IT A FELONY FOR ANYONE CONVICTED OF A "MISDEMEANOR CRIME OF DOMESTIC VIOLENCE" TO SHIP, TRANSPORT, POSSESS, OR RECEIVE FIREARMS OR AMMUNITION. IT ALSO MAKES IT A FELONY FOR ANYONE TO SELL OR OTHERWISE DISPOSE OF A FIREARM TO ANY PERSON THEY KNOW OR HAVE REASONABLE CAUSE TO BELIEVE HAS SUCH A CONVICTION. THE LAW APPLIES TO ANYONE WHO HAS A CONVICTION FOR A "MISDEMEANOR CRIME OF DOMESTIC VIOLENCE" REGARDLESS OF WHEN THE CONVICTION OCCURRED. THERE IS NO EXCEPTION FOR MILITARY PERSONNEL OR FOR MILITARY ISSUED WEAPONS. B. REF A ESTABLISHED INTERIM DOD POLICY AND DIRECTED THE SERVICES TO IMPLEMENT THE LAW. REF B ESTABLISHED THE INTERIM POLICY BASED ON REF A. REF C ESTABLISHES PERMANENT DOD POLICY AND DIRECTS THE SERVICES TO IMPLEMENT THAT POLICY. C. THE LAW APPLIES TO "MISDEMEANOR CRIMES OF DOMESTIC VIOLENCE" ONLY. FOR PURPOSES OF DOD POLICY HOWEVER, A "QUALIFYING CONVICTION" ALSO INCLUDES A CONVICTION FOR A "CRIME OF DOMESTIC VIOLENCE" TRIED BY A GENERAL OR SPECIAL COURT-MARTIAL WHICH OTHERWISE MEETS THE DEFINITION OF A "MISDEMEANOR CRIME OF DOMESTIC VIOLENCE." FURTHER, AS A MATTER OF DOD POLICY, A CONVICTION FOR AN OFFENSE MEETING THE DEFINITION OF A "FELONY CRIME OF DOMESTIC VIOLENCE" ADJUDGED ON OR AFTER 27 NOV 02 SHALL BE CONSIDERED A QUALIFYING CONVICTION. DOD POLICY EXCLUDES SUMMARY COURT-MARTIAL CONVICTIONS AND NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ), OR DEFERRED PROSECUTIONS, OR SIMILAR ALTERNATIVE DISPOSITIONS IN CIVILIAN COURTS, FROM THE DEFINITION OF A QUALIFYING CONVICTION. IT ALSO EXCLUDES MAJOR MILITARY WEAPONS SYSTEMS (AIRCRAFT, MISSILES, TANKS, ETC.) AND CREW SERVED WEAPONS AND AMMUNITION FROM THE DEFINITION OF "FIREARMS." AS A MATTER OF POLICY, DOD HAS DETERMINED THAT THE ACTIONS AND POLICY REQUIRED TO IMPLEMENT THE LAUTENBERG AMENDMENT SHALL ALSO APPLY OUTSIDE UNITED STATES TERRITORY. D. DEFINITIONS OF KEY TERMS ARE SET FORTH IN PARAGRAPH 6 BELOW. E. THE LAUTENBERG AMENDMENT AND DOD POLICY ALSO APPLY TO ALL DOD APPROPRIATED AND NON-APPROPRIATED FUND CIVILIAN EMPLOYEES AS DEFINED IN 5 U.S.C. 2105, INCLUDING EMPLOYEES WORKING OUTSIDE UNITED STATES TERRITORY. IT DOES NOT APPLY TO FOREIGN NATIONALS EMPLOYED DIRECTLY OR INDIRECTLY BY DOD. DON WILL ISSUE SEPARATE IMPLEMENTING REGULATIONS GOVERNING ALL DON CIVILIAN PERSONNEL. 4. POLICY A. DOMESTIC VIOLENCE IS INCOMPATIBLE WITH MILITARY SERVICE AND CONTRARY TO CORE VALUES. IT DETRACTS FROM READINESS AND WILL NOT BE TOLERATED. PROTECTION OF SPOUSES AND CHILDREN IS PARAMOUNT. THE LAUTENBERG AMENDMENT FURTHERS THIS END BY DENYING PERPETRATORS ACCESS TO WEAPONS FOLLOWING A CONVICTION; HOWEVER, PREVENTING DOMESTIC VIOLENCE AND TIMELY AND EFFECTIVE INTERVENTION REMAIN COMMAND RESPONSIBILITIES, EXECUTED WITH THE ASSISTANCE OF THE FAMILY ADVOCACY PROGRAM. IN ADDITION TO THE ACTIONS DIRECTED BELOW TO COMPLY WITH THE LAUTENBERG AMENDMENT, COMMANDERS SHALL CONTINUE TO TAKE ALL APPROPRIATE MEASURES, TO INCLUDE RESTRICTING ACCESS TO WEAPONS, WHENEVER THEY DEEM IT NECESSARY TO PROTECT MILITARY SPOUSES AND CHILDREN FROM DOMESTIC VIOLENCE. B. PURSUANT TO DOD POLICY, PERSONNEL HAVE AN AFFIRMATIVE, CONTINUING OBLIGATION TO NOTIFY THEIR COMMANDERS IF THEY HAVE, OR LATER RECEIVE A QUALIFYING CONVICTION. THE REVISED DD FORM 2760, DEC 2002, "QUALIFICATION TO POSSESS FIREARMS OR AMMUNITION," MUST BE USED FOR SUCH NOTIFICATION, AND BEFORE QUESTIONING A SERVICE MEMBER SUSPECTED OF HAVING A QUALIFYING CONVICTION. STATEMENTS MADE ON THIS FORM ARE GIVEN UNDER A GRANT OF IMMUNITY AND MAY NOT BE USED IN A PROSECUTION FOR VIOLATING THE GUN CONTROL ACT. HOWEVER, KNOWINGLY AND WILLFULLY PROVIDING FALSE INFORMATION ON THE DD FORM 2760 MAY RESULT IN CRIMINAL OR ADMINISTRATIVE PROCEEDINGS. COMPLETED FORMS WILL BE PLACED IN THE INDIVIDUAL'S SERVICE RECORD AND ANNOTATED AS A PAGE 11 ENTRY UNTIL A SYSTEM CHANGE CAN BE MADE. ONCE UPDATED, RETENTION OF THE FORM WILL NO LONGER BE REQUIRED. THE DD FORM 2760 IS ATTACHED TO REFERENCE (C) AND MAY ALSO BE OBTAINED AT WWW.DIOR.WHS.MIL/ICDHOME/DDEFORMS.HTM 5. ACTION A. RECRUITING COMMAND WILL CONTINUE TO SCREEN ALL APPLICANTS FOR ENLISTMENT OR OFFICER ACCESSION PROGRAMS, INCLUDING THOSE CURRENTLY IN THE DELAYED ENTRY PROGRAM, AND SHALL NOT ACCESS ANYONE WHO HAS A MISDEMEANOR OR FELONY DOMESTIC VIOLENCE CONVICTION. INDIVIDUALS WITH SUCH CONVICTIONS WILL NOT BE GRANTED A WAIVER FOR ENTRANCE. B. TRAINING AND EDUCATION COMMAND WILL MODIFY THE COMMON SKILLS ORDER AND THE INDIVIDUAL TRAINING STANDARDS ORDER TO IMPLEMENT TRAINING CONSISTENT WITH THIS POLICY. THE TRAINING WILL INFORM MARINES OF THE DOMESTIC VIOLENCE AMENDMENT TO THE GUN CONTROL ACT, ITS CONSEQUENCES, THE USE OF THE DD FORM 2760, AND THE PROTECTIONS IT AFFORDS. C. COMMANDERS SHALL NOT ROUTINELY SCREEN MARINES AND SAILORS FOR DOMESTIC VIOLENCE CONVICTIONS. COMMANDERS, OTHER THAN THOSE IN DEPLOYED UNITS, WHO SUSPECT OR BECOME AWARE THROUGH VOLUNTARY DISCLOSURE OR OTHER MEANS, THAT PERSONNEL HAVE A MISDEMEANOR OR FELONY CONVICTION FOR DOMESTIC VIOLENCE SHALL: (1) AFFORD THE SERVICE MEMBER THE OPPORTUNITY TO COMPLETE THE DD FORM 2760. (2) IMMEDIATELY RETRIEVE GOVERNMENT ISSUED FIREARMS AND AMMUNITION FROM THE SERVICE MEMBER AND SUSPEND FUTURE ACCESS. (3) IMMEDIATELY SECURE THE SERVICE MEMBER'S ACCESS TO ANY PRIVATELY OWNED FIREARMS AND AMMUNITION KEPT IN THE MEMBER'S GOVERNMENT QUARTERS OR IN THE ARMORY ABOARD BASE. (4) ADVISE THE SERVICE MEMBER TO TAKE IMMEDIATE ACTION TO LAWFULLY DISPOSE OF ANY PRIVATELY OWNED FIREARMS AND AMMUNITION. (5) REFER THE SERVICE MEMBER TO THE COGNIZANT STAFF JUDGE ADVOCATE (SJA) TO DETERMINE WHETHER OR NOT THERE IS, IN FACT, A QUALIFYING CONVICTION. D. COMMANDERS OF DEPLOYED UNITS WHO SUSPECT OR BECOME AWARE THAT PERSONNEL HAS A MISDEMEANOR OR FELONY CONVICTION FOR DOMESTIC VIOLENCE, SHALL NOT SUSPEND THE SERVICE MEMBER'S ACCESS TO WEAPONS DURING THE DEPLOYMENT AS THIS MAY ADVERSELY IMPACT UNIT READINESS AND THE INDIVIDUAL MEMBER'S SAFETY. UPON COMPLETION OF DEPLOYMENT, HOWEVER, COMMANDERS SHALL IMMEDIATELY TAKE THE ACTIONS SET FORTH IN PARAGRAPH 5C ABOVE. E. COMMANDERS MAY AFFORD SERVICE MEMBERS WHO HAVE QUALIFYING CONVICTIONS A REASONABLE TIME TO OBTAIN AN EXPUNGEMENT OR PARDON OF THE QUALIFYING CONVICTION. ACCESS TO FIREARMS AND AMMUNITION HOWEVER, SHALL BE SUSPENDED DURING THIS PERIOD IN ACCORDANCE WITH PARAGRAPHS 5C AND D ABOVE. CONTACT CMC(MMEA-6) FOR RETENTION OPTIONS, IF SERVICE MEMBER IS OTHERWISE ELIGIBLE AND RECOMMENDED FOR REENLISTMENT. F. PERSONNEL WITH QUALIFYING CONVICTIONS MAY ALSO BE PROCESSED FOR ADMINISTRATIVE SEPARATION IN ACCORDANCE WITH REFERENCE D. SEPARATION OF MEMBERS WITH QUALIFYING CONVICTIONS SHALL COMPLY WITH EXISTING STATUTORY MILITARY RETIREMENT SANCTUARIES. A SERVICE MEMBER IN A STATUTORY MILITARY RETIREMENT SANCTUARY WHO HAS A "QUALIFYING CONVICTION" AND WOULD OTHERWISE BE SEPARATED UNDER CURRENT REGULATIONS, SHALL BE GIVEN MEANINGFUL DUTIES THAT DO NOT ENTAIL ACCESS TO FIREARMS OR AMMUNITION, UNTIL THEY ARE RETIRED UPON FIRST ATTAINING ELIGIBILITY. G. COMMANDERS SHALL POST NOTICES OF THIS POLICY IN ALL FACILITIES IN WHICH GOVERNMENT FIREARMS OR AMMUNITION ARE STORED, ISSUED, DISPOSED OF, AND TRANSPORTED. 6. DEFINITION OF KEY TERMS A. "FIREARM" MEANS: (1) ANY WEAPON (INCLUDING A STARTER GUN) WHICH WILL OR IS DESIGNED TO, OR MAY READILY BE CONVERTED TO, EXPEL A PROJECTILE BY THE ACTION OF AN EXPLOSIVE; (2) THE FRAME OR RECEIVER OF ANY SUCH WEAPON; AND (3) ANY FIREARM MUFFLER OR FIREARM SILENCER; OR (4) ANY DESTRUCTIVE DEVICE. HOWEVER, IT DOES NOT INCLUDE MAJOR MILITARY WEAPONS SYSTEMS OR "CREW SERVED" MILITARY WEAPONS (TANKS, MISSILES, AIRCRAFT, ETC.) B. "DESTRUCTIVE DEVICE" MEANS (1) ANY EXPLOSIVE, INCENDIARY, OR POISON GAS BOMB, GRENADE, MINE, OR ANY SUCH ROCKET HAVING A PROPELLANT CHARGE OF MORE THAN FOUR OUNCES, OR ANY DEVICE SIMILAR TO ANY OF THE DEVICES DESCRIBED IN THE PRECEDING CLAUSES; (2) ANY TYPE OF WEAPON BY WHATEVER NAME KNOWN WHICH WILL, OR WHICH MAY BE READILY CONVERTED TO, EXPEL A PROJECTILE BY THE ACTION OF AN EXPLOSIVE OR OTHER PROPELLANT, AND WHICH HAS ANY BARREL WITH A BORE OF MORE THAN ONE-HALF INCH IN DIAMETER; AND (3) ANY COMBINATION OF PARTS EITHER DESIGNED OR INTENDED FOR USE IN CONVERTING ANY DEVICE INTO ANY DESTRUCTIVE DEVICE DESCRIBED IN SUBPARAGRAPH (1) OR (2) AND FROM WHICH A DESTRUCTIVE DEVICE MAY BE READILY ASSEMBLED. HOWEVER, THE TERM "DESTRUCTIVE DEVICE" SHALL NOT INCLUDE ANY DEVICE WHICH IS NEITHER DESIGNED NOR REDESIGNED FOR USE AS A WEAPON NOR SHALL INCLUDE ANY DEVICE, ALTHOUGH ORIGINALLY DESIGNED AS A WEAPON, WHICH IS REDESIGNED FOR USE AS A SIGNALING, PYROTECHNIC, LINE THROWING, SAFETY, OR SIMILAR DEVICE. C. "AMMUNITION" MEANS AMMUNITION OR CARTRIDGE CASES, PRIMERS, BULLETS, OR PROPELLANT POWDER DESIGNED FOR USE IN ANY FIREARM. HOWEVER, IT DOES NOT INCLUDE AMMUNITION FOR MAJOR MILITARY WEAPONS SYSTEMS OR "CREW SERVED" MILITARY WEAPONS SYSTEMS. D. "POSSESSION" INCLUDES BOTH "ACTIVE POSSESSION" AND "CONSTRUCTIVE POSSESSION," WHETHER AUTHORIZED OR UNAUTHORIZED. ACTIVE POSSESSION OF A FIREARM OR AMMUNITION EXISTS WHEN THE FIREARM OR AMMUNITION IS IN THE IMMEDIATE POSSESSION OF THE PERSON. CONSTRUCTIVE POSSESSION EXISTS WHEN A PERSON DOES NOT HAVE ACTUAL POSSESSION BUT INSTEAD KNOWINGLY HAS THE POWER TO, AT A GIVEN TIME, EXERCISE DOMINION AND CONTROL OVER THE FIREARM OR AMMUNITION, EITHER DIRECTLY OR THROUGH OTHERS. POSSESSION NEED NOT BE EXCLUSIVE BUT MAY BE JOINT WITH OTHERS. E. "REASONABLE CAUSE" MEANS THAT THERE IS RELIABLE INFORMATION THAT A REASONABLE, PRUDENT PERSON WOULD RELY ON WHICH MAKES IT MORE LIKELY THAN NOT THAT THE INDIVIDUAL HAS A QUALIFYING CONVICTION. F. "RECEIVE" MEANS TO OBTAIN, TO TAKE, TO ACCEPT, TO ACQUIRE, OR TO COME INTO POSSESSION OF. G. "DISPOSE" MEANS TO EXERCISE CONTROL OVER, TO DIRECT, TO ASSIGN FOR USE, OR TO ALIENATE, BARGAIN AWAY, BESTOW, CONVEY, EXCHANGE, GIVE AWAY, OR TRANSFER BY AUTHORITY. H. "SHIP" MEANS THE TRANSPORTATION, OR THE EFFECTING OF TRANSPORTATION, WITHOUT LIMITATION AS TO THE MEANS OR FACILITIES USED OR WITH RESPECT TO THE PERSON TO WHOM AN SHIPMENT IS MADE. I. "INTERSTATE OR FOREIGN COMMERCE" INCLUDES COMMERCE BETWEEN ANY PLACE IN A STATE AND ANY PLACE OUTSIDE OF THAT STATE, OR WITHIN ANY POSSESSION OF THE UNITED STATES (NOT INCLUDING THE CANAL ZONE) OR THE DISTRICT OF COLUMBIA. SUCH TERM DOES NOT INCLUDE COMMERCE BETWEEN PLACES WITHIN THE SAME STATE BUT THROUGH ANY PLACE OUTSIDE OF THAT STATE. J. "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 IS COHABITATING WITH OR 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). K. "MISDEMEANOR CRIME OF DOMESTIC VIOLENCE" IS A "CRIME OF DOMESTIC VIOLENCE" THAT IS CLASSIFIED AS A MISDEMEANOR UNDER STATE OR FEDERAL LAW. L. "FELONY CRIME OF DOMESTIC VIOLENCE" IS A "CRIME OF DOMESTIC VIOLENCE" THAT IS CLASSIFIED AS A FELONY UNDER STATE OR FEDERAL LAW. M. "QUALIFYING CONVICTION" APPLIES TO ANY OF THE FOLLOWING: (1) A STATE OR FEDERAL CONVICTION FOR A "MISDEMEANOR CRIME OF DOMESTIC VIOLENCE;" (2) A STATE OR FEDERAL CONVICTION FOR A "FELONY CRIME OF DOMESTIC VIOLENCE" ADJUDGED ON OR AFTER 27 NOV 2002; AND (3) ANY GENERAL OR SPECIAL COURT-MARTIAL CONVICTION FOR A UNIFORM CODE OF MILITARY JUSTICE OFFENSE WHICH OTHERWISE MEETS THE ELEMENTS OF A "CRIME OF DOMESTIC VIOLENCE," EVEN THOUGH NOT CLASSIFIED AS A MISDEMEANOR OR FELONY. PROVIDED FURTHER HOWEVER, THAT A PERSON SHALL NOT BE CONSIDERED TO HAVE A "QUALIFYING CONVICTION" UNLESS: (1) THE CONVICTED OFFENDER WAS REPRESENTED BY COUNSEL, OR KNOWINGLY AND INTELLIGENTLY WAIVED THE RIGHT TO COUNSEL; AND (2) IF ENTITLED TO HAVE THE CASE TRIED BY JURY OR BEFORE COURT MEMBERS, THE CASE WAS ACTUALLY TRIED BY A JURY OR COURT MEMBERS OR THE PERSON KNOWINGLY AND INTELLIGENTLY WAIVED THE RIGHT TO HAVE THE CASE TRIED BY A JURY OR COURT MEMBERS; AND (3) THE CONVICTION HAS NOT BEEN EXPUNGED OR SET ASIDE, OR THE CONVICTED OFFENDER HAS NOT BEEN PARDONED FOR THE OFFENSE OR HAD CIVIL RIGHTS RESTORED, UNLESS THE PARDON, EXPUNGEMENT, OR RESTORATION OF CIVIL RIGHTS PROVIDES THAT THE PERSON MAY NOT SHIP, TRANSPORT, POSSESS OR RECEIVE FIREARMS. N. STATUTORY MILITARY RETIREMENT SANCTUARY MEANS MEMBERS WITHIN TWO YEARS OF QUALIFYING FOR RETIREMENT WILL BE RETAINED ON ACTIVE DUTY UNTIL RETIREMENT ELIGIBLE, UNLESS SEPARATED PURSUANT TO A COURT MARTIAL, OR ADMINISTRATIVE SEPARATION FOR CAUSE.//