Law Firm Note: This article attempts to answer a question that we frequently receive, that is, can I join the military if I have a criminal record. The short answer is maybe. It depends what is on your record and what you have done to clear your record. It also answers questions regarding how to handle questions about cases that have been cleared through expungement or other remedies.
The United States military provides outstanding employment opportunities and training for those who enlist. The six branches of the U.S. Armed Forces (the Army, Army National Guard, Navy, Air Force, Marine Corps, and U.S. Coast Guard) all have different recruiting criteria. Each branch requires applicants to meet rigorous moral character standards, and each must apply with federal regulations when it comes to accepting applicants with a criminal record.
Moral standards for enlistment deal generally with the acceptability of persons with records of court, convictions or adverse juvenile judgments. Moral character screening is the process by which recruiters review applicants’ credit and criminal backgrounds. The standards screen out persons who may become serious disciplinary cases and who could bring harm to the military mission. In addition to the initial screening, recruiters conduct interviews of applicants with criminal backgrounds.
The screening procedures are lengthy and extensive. The applicant’s convictions are assessed based on the severity of the offense. Each applicant is required to disclose incidents that resulted in charges being filed or an arrest. Additionally, to ensure equal treatment of all persons applying got enlistment, under Title 32, Chapter V, Section 571.3(c)(2)(i) of the Code of Federal Regulations, the applicants are required to disclose all sealed, expunged, or juvenile records. While under State law, the applicant with a pardon, expungement or dismissal has no record of conviction; a waiver is nonetheless required to authorize his or her enlistment. Failure to disclosure this information or providing false information is considered a federal offense.
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Applicants with six or more minor traffic offenses, where the fine was $100 or more per offense are required to obtain a waiver.
Applicants who have three or more civil conviction or other adverse dispositions for minor non-traffic offenses are required to obtain a waiver.
Section 571.3 (c)(2)(ii) defines a juvenile offense as one committed by the applicant under the age of eighteen. The applicant must reveal all offenses committed as a juvenile, including offenses that have been expunged, dismissed, sealed or pardoned. Under Section 571.3 (c)(2)(iv)(B), while these subsequent proceedings recognize rehabilitation, they do not alter the fact that the juvenile committed the act. Failure of an applicant to disclose his or her juvenile offenses is considered a federal offense.
Under Section 571.3 (c)(1), applicants require a misdemeanor waiver if arrested, cited, charged, or held and allowed to plead guilty to a lesser offense or to plead guilty to criminal possession of stolen property (value $100 or less). An arrest or questioning that did not result in charges does not require a waiver. Similarly, charges that were dismissed without determination of guilt do not require a waiver.
Felonies are the most problematic of recruitment offenses. The U.S. Armed Forces utilize their own definitions of what constitutes a felony. Examples of felony offenses include aggravated assault, arson, burglary, manslaughter, robbery, and narcotics possession. Visit http://www.army.com/resources/item/2150, for a complete list of felonies that may result in application denial. Many states allow a felony conviction to be expunged and reduced to a misdemeanor.
Pursuant to Section 571.3, the military can choose to waive certain offenses and meet the basic qualifications for enlistment. Applicants who require a waiver are not qualified for enlistment until a waiver is approved. The burden is on the applicant to demonstrate that his or her acceptance will benefit the military, regardless of his or her criminal past. If you need one of these waivers, you are not alone. Nearly 12% of all army recruits required waivers for their criminal records in order to join.
Recruiters themselves do not have waiver approval/disapproval authority. Some waivers can be approved/disapproved by the Recruiting Battalion Commander, other waivers must be approved/disapproved by the Commanding General of the Army Recruiting Command. Unless otherwise stated in the waiver document, waivers are valid for six months.
Waiver authorities will consider the "whole person" concept when considering waiver applications. Having a conviction expunged, vacated, set aside or sealed increases the chances of receiving a waiver. While you still need to disclose a cleared conviction, having it cleared shows that the court has forgiven the offense or considers your rehabilitated. Contact an attorney who specializes in record clearing to discuss your options on increasing your chances on obtaining a waiver or removing the requirement to obtain a waiver.
If a waiver is disapproved, there is no appeal (the waiver process itself is the appeal -- the individual is not qualified for enlistment and submits a waiver request, appealing to Army recruiting authorities to make an exception in his/her particular case). So it is very important to do all you can to clear your record as much as possible, before you request a waiver.
Offenses that cannot be waived include: (1) being intoxicated or under influence of alcohol or drugs at the time of application, or at any stage of processing for enlistment, (2) person under civil restraint, such as confinement, parole, or probation, (3) civil conviction of a felony with three or more offenses, (4) three or more DUIs. For a complete list of offenses that cannot be waived, visit http://www.army.com/resources/item/2150. Additionally, applicants who have received more than four civil convictions or other adverse dispositions for misdemeanor offenses are unable to obtain a waiver.
Pursuant to Section 571.3 (f)(2), applicants subject to a pending charge are not eligible for enlistment. As such, recruiting personnel will not help the applicant in releasing him or her from a pending charge so that he or she may enlist in the Army as an alternative to further prosecution.
If, during the waiting period following release from civil restraint the applicant demonstrates rehabilitation, the Army will use it as a basis to judge the applicant’s moral fitness. If all civil restraint is ended and there is substantial evidence of rehabilitation as a law-abiding member of a civil community, the applicant will be processed for enlistment.
To learn more about clearing your record, you can go through our extensive expungement information and education library.
Olga Sattarova holds a juris doctor from the University of Utah's S.J. Quinney College of Law. Mathew Higbee Esq. contributed to this article.