June 2, 2000 In Reply Refer To: 212
Fast Letter 00-44
Director (00/21)

All VBA Regional Offices and Centers

SUBJ: National Instant Criminal Background Check System (NICS) Process

Background:

The Brady Handgun Violence Protection Act (Brady Act) of 1993 established the National Instant Criminal Background Check System (NICS). When drafting the regulations for NICS, the Bureau of Alcohol, Tobacco, and Firearms (ATF) defined the seven categories of individuals prohibited from purchasing or redeeming firearms. ATF incorporated the VA definition of incompetent because of injury or disease lack the mental capacity to contract or manage their own affairs into the category of those adjudicated as a mental defective. The Veterans Benefits Administration (VBA), through a Memorandum of Understanding with the Federal Bureau of Investigation (FBI), is providing the FBI with information on veterans rated as incompetent, incompetent surviving spouses, adult helpless children and dependent parents. Licensed gun dealers are required to check the NICS system to see if an individual is in a prohibited category before transferring a firearm to that individual.

What VBA has Done:

In November 1999, VBA provided NICS with an initial load of data on incompetent veterans, surviving spouses, adult helpless children and dependent parents from information in the Benefits Delivery Network (BDN) and the Fiduciary Beneficiary System (FBS). This consisted of data on 88,898 beneficiaries which were loaded into the NICS index.

Rights of Denied Firearms Purchasers:

If a veteran or beneficiary is denied the right to purchase or redeem a firearm, he or she may request the reason for the denial from the agency that conducted the check of the NICS data. If that individual wishes to challenge the accuracy of the record upon which the denial was based or if he or she wishes to assert that his or her rights to possess a firearm have been restored, he or she must appeal to the denying agency, i.e. the FBI or state or local law enforcement agency. If the denying agency is unable to resolve the appeal, the denying agency will inform the individual of the reason for the denial, as well as the name and address of the agency that provided the information upon which the denial was based. If the denial was based on a VA rating or court order of incompetency and the individual denied writes to the VA Central Office VBA Contact Point requesting a correction of the record, the request will be forwarded to the regional office with jurisdiction over the claims file.

If the denial of the purchase or redemption of a firearm was because the individual was rated as incompetent by VA or because of a court order, under the Privacy Act, 5 U.S.C. 552a, he or she has the right to request a correction or amendment of his or her records if the incompetency finding is found not to have been correct. If the regional office determines that the incompetency determination was correct and the records cannot be amended, the claimant must be informed by the regional office that he or she has the right to appeal the decision not to amend the records by writing to the General Counsel, Department of Veterans Affairs, 810 Vermont Avenue, N.W., Washington, DC 20420. If the beneficiary has not been rated or determined to be incompetent, he or she should be so informed. Also, the appropriate centralized VBA NICS contact point (See paragraph 9 below) should be informed of that information by telephone or e-mail so that the information may be passed on to the FBI NICS office.

How Data Quality is Determined:

For quality assurance purposes, NICS is requesting a quarterly review of a sampling of approximately 100 cases to confirm the determination of incompetency, as well as the beneficiaries Social Security number and date of birth. From the initial load of data, they requested a review of 107 cases. This review was completed by employees at 44 regional offices and the incompetency finding was found to be appropriate in all cases. However, a number of cases were found in which the veterans or beneficiaries names were incorrectly spelled or required a full first name, middle initial, or suffix, such as Jr. A number of other cases required the provision or correction of the beneficiaries Social Security number or date of birth. The next review is due in June 2000. A special review by FBI personnel of 200 claims folders will also occur this year in Washington.

What You Need to Know for this Program:

Under the law, we are to routinely provide updated information on new incompetents. If an individual previously rated incompetent has their competency restored, under the law they are still permanently restricted from purchasing or redeeming a firearm and information concerning that individual will not be stricken from the NICS index. We are now developing procedures for providing NICS with data on veterans and beneficiaries that have been determined to be incompetent since November 1999 and for periodic future updates.

Non-Retention of Records Related to NICS Background Checks:

The NICS law prohibits the retention of records as to inquiries on potential firearms purchasers. Do not retain any information related to a NICS background check for reference or backup purposes. Do not create a memorandum for file or contact report. Information that may not be maintained and must be destroyed includes but is not limited to: all inquiry and response messages relating to the initiation and result of a NICS background check, all records relating to the individual or the transfer created as a result of a NICS background check, notes, system records, hard drives, disks, letters, personal logs, etc.

Questions:

Questions should be directed to the contact listed on the appropriate Calendar page at:

http://vbaw.vba.va.gov/bl/21/calendar/index.htm

Rescission:
This letter is rescinded effective June 1, 2001.

/s/
Robert J. Epley, Director
Compensation and Pension Service