How a lapse in reporting allowed Devin Kelley to purchase firearms

Photos of Devin Kelley via his Facebook page.
Photos of Devin Kelley via his Facebook page.

AUSTIN (KXAN) — The U.S. Air Force is admitting it failed to properly notify federal law enforcement agencies of a felony domestic violence conviction for the man accused of shooting 26 people to death in a Sutherland Springs church Sunday morning.

The Air Force, through a spokeswoman, released the admission in a statement to multiple news outlets late Monday. “Initial information indicated that Kelley’s domestic violence offense was not entered into the National Crime Information Center database,” the spokeswoman wrote in the Air Force statement.

The NCIC is one of a few databases used by state and federal law enforcement agencies to expeditiously run criminal background checks and to look for outstanding warrants. The system can quickly provide law enforcement a person’s criminal history with a first and last name, social security number and date of birth.

Kelley would likely have been flagged on the first gun purchase in 2014, had his information been entered into the federal database. Since it was not, none of the four gun dealers who officials said Kelley bought from in 2014, 2015, 2016, and 2017 had any idea of the felony convictions on his record.

The failure to enter Kelley’s convictions happened at the Holloman Air Force Base Office of Special Investigations, the Air Force statement confirmed. The service said it’s performing a “comprehensive review” of how this happened.

Kelley’s discharge was key clue 

Devin Kelley was court-martialed in 2012 and left a federal military prison in 2014 a convicted felon after serving one year in prison. Kelley was supposed to never have the right to vote again and could never legally own a firearm. The reason: Kelley left the military carrying one of the two worst discharges available.

And, Kelley’s discharge is typically reserved for the military’s worst offenders.

There are six different types of discharges for military members. In order from best to worst:

  • Honorable Discharge
  • General Under Honorable Conditions
  • Other Than Honorable
  • Bad Conduct Discharge
  • Dishonorable Discharge

A sixth discharge, known as “Other Discharge” typically happens before a military member finishes basic training.

“Bad Conduct Discharge” and “Dishonorable Discharge” classifications are the only two types of separations where a military member is court martialed,” according to Bennett Gore, a former member of the Army’s Judge Advocate General Corps.

Gore, who prosecuted criminal cases in the military, told KXAN Kelley’s conviction was enough to earn the former airman a red flag on in the federal background check database, “A conviction at that level — with a sentence of a Bad Conduct Discharge — would certainly prevent him from being able to possess a firearm,” Gore said.

“The charges were also domestic violence-related, which also triggered what’s known as the “Lautenberg Amendment,” Gore said. The federal amendment was written specifically to ensure people convicted of domestic violence crimes lose gun rights.

A conviction in a military court martial is the same as a conviction in federal district court, Gore explained.

”You lose all the same rights with that conviction as you do a federal conviction in district court. So, he shouldn’t be able to vote, he shouldn’t be able to own a firearm and the whole host of other things that go on with a federal felony conviction,” Gore said.

When we interviewed Gore Monday afternoon — hours before the military admitted the error — it was already apparent to the veteran military lawyer that something had to have broken down in the background check system, “That conviction has to be properly reported and properly entered into the system and if it’s not in the system, then it’s not going to show up on the background check at the store, then he’s more than likely going to be able to purchase the firearm with the appearance of it being legal to the store because he didn’t hit a red flag in the system,” Gore told KXAN.

That’s exactly what ended up happening. As it turns out, the Air Force failed to properly report the Kelley conviction, according to the service.

Investigators said Kelley purchased two guns in Colorado and two guns in Texas since 2014. The Texas purchases happened in 2016 and 2017 at two different San Antonio Academy Sports and Outdoors stores.

All four purchases were never flagged by the federal background check system.

Academy Sports confirmed the 2016 and 2017 purchases in a statement to KXAN. The company confirmed both purchases were sent in to the federal database for a background check and that, “both sales were approved by the National Instant Criminal Background Check System (NICS),” Academy Sports Communications Director Elise Hasbrook wrote in an emailed statement.

Air Force spokeswoman Ann Stefanek confirmed Kelley was kicked out of the service on a Bad Conduct Discharge after a one year prison sentence. Kelley was court martialed in 2012 and pleaded guilty to two counts of assault on a spouse and assault on a child.

Service records show Kelley left the service in 2014, which is the same year he purchased the first of the four guns investigators said they found in Kelley’s possession following the church shooting.

The service has promised an internal investigation to figure out exactly what happened. The Air Force has not said how long that review could take.

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