Devin Kelley shouldn’t have had a gun. He’d pleaded guilty in a 2013 court martial to beating his wife and young child, which barred him from owning a firearm under federal law. But the Air Force never sent records of his guilty plea to the Federal Bureau of Investigation, as the law requires, so Kelley’s background check came back clean when he bought a Ruger AR-556 rifle in April 2016.
Last November, he used that rifle to kill 26 people and injure 20 more at a Baptist church in Sutherland Springs, Texas.
Kelley’s criminal record was not the only one to fly under the military’s radar. A previously unpublished document obtained by ThinkProgress shows how the Defense Department misled the Obama administration in 2013 when Pentagon officials said they were submitting all relevant records to the nation’s gun background check system. In fact, they weren’t. Kelley and thousands of other people who are barred from owning firearms weren’t flagged in the system.
Pentagon officials have known about this problem for a long time, according to Jamal Alsaffar, a lawyer who represents three Sutherland Springs families.
“They were aware of the problem. They were aware it was a systemic problem,” Alsaffar told ThinkProgress. “And there was not a lot of motivation within the department to fix the problem they knew existed.”
There are ten categories of people who can’t own a gun under federal law, including anyone convicted of domestic violence or dishonorably discharged from the military. Licensed gun dealers have to run every potential buyer through the FBI’s National Instant Criminal Background Check System, or NICS, to make sure they don’t fall into one of those categories. But NICS is only as good as the records submitted to its databases by federal, tribal, state, and local law enforcement.
The military has had trouble getting records into NICS for a long time. The Defense Department’s Inspector General issued reports on the problem in 1997 and 2015. A third Inspector General report issued last year found that the military didn’t report 31 percent of final case outcomes to the FBI, on average, in 2015 and 2016. That’s thousands of records that didn’t get into NICS — and thousands of firearms that had the chance to get into the wrong hands.
Pentagon officials have rushed to fix the problem since the Sutherland Springs shooting, and the Inspector General has an open investigation on the matter.
“The Department of Defense is aware of these reports and is working closely with ATF and FBI to ensure accurate reporting of NICS records,” Defense Department spokesperson Maj. Audricia Harris told ThinkProgress by email.
But the new document, which ThinkProgress obtained through a public records request, shows a past chance at reform that the Defense Department overlooked.
The document’s existence was first reported by NPR, but its contents have not been previously reported.
The shooting at Sandy Hook Elementary School in December 2012 shook the country. When Congress refused to take action on gun reform in the weeks that followed, President Barack Obama issued a presidential memorandum that required federal agencies to send the Justice Department a report “advising whether they possess relevant records … and setting forth an implementation plan for making information in those records available to the NICS.”
The Defense Department’s implementation plan, obtained by ThinkProgress, was just three pages long. In a cover letter that accompanied the plan, Jessica L. Wright, then acting under secretary of defense for personnel and readiness, explained that the Defense Department “has been submitting its ‘prohibited persons’ data to NICS since 1998.”
The implementation plan went on to tout the Pentagon’s decentralized reporting system, where each of its law enforcement agencies — two for each service branch, plus countless others — has its own procedures for getting records into the gun background check databases. This patchwork system, the plan claimed, “enhances [the Defense Department’s] ability to make all pertinent records available to NICS in a timely fashion.”
But it also created problems: Because its reporting is so decentralized, the Defense Department said, it couldn’t say how many records it had submitted.
Still, the implementation plan was bullish in its final assessment of how the Pentagon was complying with federal law on submitting records to the FBI.
“[The Defense Department] is providing all relevant information it creates to NICS,” the plan concluded.
That wasn’t true, as the 1997 Inspector General’s report had already shown. So how did Pentagon officials land so far off the mark in their 2013 implementation plan?
The Defense Department likely issued the plan after checking to see whether its existing policies and regulations were in line with federal law, according to Geoffrey S. Corn, a retired Army Lieutenant Colonel who now teaches law at South Texas College of Law Houston.
“What seems most significant to me is the assertion that the decentralized reporting system enhances timeliness, without acknowledging that it also creates risks of reporting oversights with very little accountability,” Corn said in an email to ThinkProgress. “We know that had the [regulations] been followed, the court-martial conviction should have generated a report; we know it did not. So obviously the decentralized approach also creates such risk.”
Eric R. Carpenter, a former Army lawyer and a professor at Florida International University College of Law, agreed that the problem is how the Defense Department implements its reporting policies — not the policies themselves.
“This is basically a document that sets out the plan,” Carpenter said of the implementation plan. “The problem was in the execution.”
The implementation plan did highlight one ongoing problem with the Pentagon’s NICS reporting. Federal law bans possession of a firearm by an “adjudicated mental defective.” The Defense Department said it was having trouble “determining which nonjudicial boards… adjudicate mental defectives that would qualify for reporting” and was “working to clarify this situation.”
“The review and subsequent regulation writing process, to effect that reporting, will require a minimum of ten months to accomplish,” the plan said.
The Office of the Secretary of Defense referred questions about the outcome of that review to the Defense Health Agency, which did not return requests for comment.
The 2013 implementation plan sat in government files for four years before the Sutherland Springs shooting brought public scrutiny to the issue. Now several efforts are underway to fix the Pentagon’s reporting problems once and for all. President Trump signed the Fix NICS Act into law in late March. Military branches launched their own reviews, submitting thousands of previously missed records to the background check system. And the Inspector General launched its fourth investigation, which is still in process.
But these efforts are largely going unnoticed, because just a year after 26 people died in a little church in Texas, public scrutiny has moved on. Meanwhile, the victims’ families have filed a series of civil suits in a search for answers.
“These lawsuits are about discovering what the problem is,” said Alsaffar, a lawyer in the cases. “And why it went on for so long despite multiple investigations.”