The Department of Defense and the Air Force both declined to comment.
The Nov. 5 shooting, which left 26 people dead, highlighted long-standing failures by the military to report incidents involving service members that would disqualify them from buying firearms under U.S. law.
Kelley was discharged from the Air Force in 2014 after being convicted in a general court-martial of assaulting and choking his wife and cracking the skull of his stepson. He received a one-year sentence in military prison for the crimes.
The Air Force failed to send Kelley’s fingerprints and a report on his conviction to the FBI for inclusion in criminal databases, the Pentagon’s inspector general found in a review of the incident. As a result, he passed background checks to buy the firearms that he used in the Texas shooting.
Kelley also escaped from a mental health institution for service members in 2012, according to an El Paso police report.
People who have been committed to mental health institutions, discharged from the armed forces under dishonorable conditions or convicted of domestic violence offenses are prohibited from buying firearms under federal law. Pentagon policy requires the department to submit to the FBI criminal history data of service members investigated for certain offenses, including assault.
The Johnson children are pursuing their claim under the Federal Tort Claims Act, which requires them to file what is known as an administrative claim — a detailed notice of their legal argument — before filing an official lawsuit in federal court, according to their lawyer, Jamal Alsaffar. They presented their administrative claims on March 2.
The government then has six months to deny or settle the claims. Alsaffar said his clients would file their official lawsuit in federal court in San Antonio in six months if the case isn’t resolved.
The military has a long track record of failing to report criminal histories of service members to federal databases. The Pentagon inspector general examined 2,502 criminal cases between January 2015 and December 2016 and found that one in four fingerprint cards was not submitted. Previous inspector general reviews in 1997 and 2015 also found significant noncompliance.
Secretary of Defense Jim Mattis vowed in November to correct the situation.
Other families affected by the Sutherland Springs shooting have filed similar suits. Joe and Claryce Holcombe, whose son Bryan and seven other relatives died in the shooting, filed a claim against the Air Force last year. According to the law firm representing them, that claim remains outstanding.