Update, 11/6/17, 5:56 p.m.: Fact Check originally wrote that “at this time it is still unclear if Kelley’s conviction fell under the 1996 domestic abuse amendment to the Federal Gun Act of 1968.”
Since publication, it has been reported that Kelley should have been denied the right to possess a firearm under the 1996 amendment to the Firearms Act. A Pentagon official told National Public Radio that the Air Force entered neither the arrest nor the conviction in the National Instant Criminal Background Check System.
The Fact Check has been updated to reflect this new reporting.
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After the worst mass shooting in Texas history, reports identified the shooter as Devin Patrick Kelley, a 26-year-old who previously served in the U.S. Air Force before receiving a bad conduct discharge.
Kelley spent 12 months in confinement for domestic violence against his wife and their child, according to reports.
After the revelation that Kelley was not dishonorably discharged but instead received a bad conduct discharge, several journalists and pundits suggested that Kelley could have legally purchased a firearm.
CNN reported that Kelly legally purchased the firearm in April 2016, years after his bad conduct discharge from the Air Force:
Academy Sports & Outdoors released a statement confirming that the firearm was purchased from a San Antonio location in 2016.
What does the law say?
According to the Bureau of Alcohol, Tobacco, Firearms and Explosives a person is prohibited from purchasing a firearm if he has been “discharged from the Armed Forces under dishonorable conditions.” Kelley, however, received a bad conduct discharge, which does not fall under “dishonorable conditions.”
Other conditions that prohibit an individual from being able to legally purchase a firearm include conviction “of a misdemeanor crime of domestic violence,” according to the AFT.
It is correct that Kelley’s bad conduct discharge and the fact that his sentence did not exceed 12 months would not have prevented Kelley from being able to legally purchase a firearm because it was not a “dishonorable discharge. (See Update.) Kelley’s domestic violence conviction, however, made it illegal for Kelley to purchase a firearm.
Pentagon officials told NPR that Kelley was not flagged on the federal background check system because his arrest and conviction were mistakenly not placed in the National Instant Criminal Background Check System.
A source told NPR that an investigation in the mishap is currently underway. (Reason magazine looks at the problems with the FBI’s National Instant Criminal Background Check System here.)
According to Governor Greg Abbott, Kelley’s application to legally carry a firearm in Texas—a separate issue from being able to purchase one—was denied.
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