NIAA VA Disability Relief Program: Appealing the Loss of Gun Rights

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National Instant Criminal Background Check System (NICS)

Under the Brady Act and the NICS Improvement Amendments Act of 2007 (NIAA), a person who is mentally unfit to manage personal finances is also unfit to own or purchase firearms. This means that when the VA decides to assign you a fiduciary, the VA will report your name to the FBI in compliance with this federal law. The FBI will then add your name to a database called the National Instant Criminal Background Check System (NICS).  

It is illegal for anyone named in the NICS system to purchase or have firearms.  Gun dealers must check the NICS before selling a firearm. If your name is on the NICS, it is illegal for you to:

  • purchase a firearm
  • possess a firearm
  • receive or transport a firearm or ammunition 

You may be fined or imprisoned if you violate this law.

How Do Veterans Have Their Names Removed from NICS?

In December 2016, Congress included a provision in the 21st Century Cares Act that codified VA implementation of NIAA (38 U.S.C. §5501A). This includes your appeal rights.

Under this law, if you are dissatisfied with the VA's decision regarding your competency, you have the right to a hearing before the Board of Veterans Appeals (BVA). 

You can also appeal the VA's inclusion of your name on the NICS. However, because that is not considered an agency decision on a benefit provided by law, the VA has no duty to assist. The process for appealing the inclusion of your name on the NICS is different from the process described above.

 The people who decide your appeal will look at:

  • your record and reputation
  • your mental and physical status
  • whether you are dangerous to public safety (you, your family, or your community)

How Do I Appeal the Incompetency Decision?

You should submit a Notice of Disagreement (NOD) to the address to the fiduciary hub of jurisdiction. You have one year from the date of the notification letter regarding appointment of your VA fiduciary to submit a NOD. If you do not start your appeal on time, the decision becomes final.

Read more about VA fiduciaries here

Read more about the VA appeal process here

How do I Appeal the Inclusion of My Name on the NICS?

You should submit a letter that says you wish to be granted relief from the NICS. You should submit this to your local VARO. 

This is like a notice of disagreement (NOD). It must:

  • be in writing,
  • identify the fiduciary appointment by date,
  • state that you disagree with your name being listed on the NICS, and
  • state your desire for relief from the NICS.

Attach evidence to support your request. Make copies of everything you send to the VA. Send by certified mail, return receipt requested.

After receiving your letter, VA will decide if they have enough evidence to grant you relief.  If the evidence isn’t enough, they will send a response asking for more. The VA response will give you 30 days to send additional evidence. After 30 days, they’ll decide based on whatever they have. Gather and send as much evidence as you can. Make copies of everything you send. Send your evidence and letters using certified mail, return receipt requested.

To be successful send evidence such as:

  • A statement from your mental health doctor. It should describe your mental health status over the last five years.
  • Medical information: the extent of any mental illness symptoms and how dangerous they are.
  • A letter from the VA that says you are competent again (you no longer need a fiduciary).
  • A statement from police/a law enforcement agency that says you are not a danger to the public.

You may be unsuccessful if you:

  • Need continuous medication to be free of  certain mental illness symptoms
  • Were convicted of a felony or violent crime
  • Suffered from substance abuse within the past year
  • Are overly aggressive
  • Have had suicidal or homicidal thoughts

If you are denied:

The Board of Veterans’ Appeals does not review NICS relief denials. Basically, you can’t appeal a denial with the VA, but these denials are subject to review in Federal district court. If you are denied relief, you will be told why. If you feel that you were denied in error (you are not a danger to yourself or others when you have guns), then you may want to speak with a lawyer. Go to our “Find Local Help” map to search for local help or a referral from the Lawyer Referral Information Service (LRIS). For questions about the NICS Relief Program, call:

 

NICS Information:

NICS Customer Service
1-877-FBI-NICS (324-6427)

NICS Appeal Facsimile
1-304-625-0535

 

If you are granted relief:

If you are granted relief from the NICS, it will take about two months for your name to be removed from the database. There is another way to remove your name from the NICS. Successfully appealing the appointment of a fiduciary will automatically relieve you from the NICS. It will also take about two months for your name not to show up in the NICS after a successful appeal.

July 2018