Convictions in courts-martial within the United States Armed Forces are not specifically listed as constituting aggravated felonies, unless these convictions are considered to fall within the category of violations of federal law.  They are certainly not commonly thought of as federal criminal convictions.  If the statute is considered ambiguous on this point, the rule of lenity should tilt the balance away from imposing the drastic consequence of deportation as the result of an ambiguous statute.[198]

 

            On the other hand, some authorities appear to assume, without analysis of the statute defining conviction, that a court martial finding of guilt of an offense under military law constitutes a conviction for immigration purposes.[199]  This conclusion, however, could be challenged in immigration court and by petition for review.

 

[198] See Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (2004).

[199] Belliss, Consequences Of A Court-Martial Conviction For United States Service Members Who Are Not United States Citizens, 51 Naval L. Rev. 53, 56-57 (2005) (footnote omitted) (“While the U.S. military justice system does not provide for deferred adjudications or pleas of nolo contendre, the imposition of a sentence at a special or general court-martial upon an LPR service member will be enough to meet the statutory definition of a conviction under the United States’s immigration laws.”).

CONVICTION - MILITARY - SUMMARY COURT MARTIAL PROBABLY NOT A CONVICTION
Belliss, Consequences Of A Court-Martial Conviction For United States Service Members Who Are Not United States Citizens, 51 NAVAL L. REV. 53, 57 n.23 (2005) ("Whether the finding of guilty and imposition of punishment by a summary court-martial officer against an accused amounts to a conviction for immigration purposes is likely answered in the negative. See Middendorf v. Henry, 425 U.S. 25, 40-42 (1976). In Middendorf, the Supreme Court held that "a summary court-martial is procedurally quite different from a criminal trial" and thus is not a criminal prosecution within the meaning of the Sixth Amendment. Id. at 40. See 1 FRANCIS A. GILLIGAN & FREDERIC I. LEDERER, COURT-MARTIAL PROCEDURE 8-31.30 (2d ed.). See also United States v. Kelly, 45 M.J. 259 (1996).").

Other

CONVICTION - CRIMINAL OFFENSE -- MILITARY OFFENSE
Congress knows how to refer to military criminal offenses if it wishes to do so. For example, Congress recently provided, with respect to a specific new statute, that "The term `criminal offense' means a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense." The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, 111(6) (July 27, 2006).

MILITARY - DUTY TO ADVISE ABOUT IMMIGRATION CONSEQUENCES OF PLEA
United States v. Berumen, __ M.J. __ (C.M.A. June 12, 1987) (military judge did not have duty to advise accused that he could possibly be deported or denied United States citizenship as direct result of his plea of guilty; accused's allegations that defense counsel never advised him of immigration consequences of his guilty pleas and that accused would have insisted upon recommendation by military judge that he not be deported or would have reconsidered his decision to plead guilty, did not satisfy ineffective assistance of counsel test, establishing neither that counsel's representation fell below objective standard of reasonableness nor that prejudice existed).

POST CON - PARDON - SELECTIVE SERVICE PARDON - VIETNAM WAR
The 1977 presidential pardon for violations of the Military Selective Service Act specifically applies to eliminate the commission of such violations as grounds of inadmissibility. Implementation of Presidential Proclamation No. 4483 and Executive Order No. 11967 (both effective Jan. 21, 1977), 42 Fed. Reg. 59562 (Nov. 18, 1977). This pardon was cited in Matter of Rahman, 16 I. & N. Dec. 579 (BIA 1978), regarding President Ford's pardon of Vietnam era draft dodgers, particularly regarding LPRs who returned on or before June 1, 1978.