Expert: John L - 10/8/2008

Question
QUESTION: I am trying to re-enlist in the US Army or enlist into the Michigan Army NG, I have 5 years prior service active Army. I had a misdemeanor domestic violence charge that was dismissed under the Spousal Abuse Act. I have since applied for, received and carry a concealed weapon. The local RA recruiters can not get past the 1st Sergeant. The National Guard has sent me to MEPS and i am all good there, They are telling me the ECM considers me to have a felony. My conviction is actually a misdemeanor (ECM states no weapon permitted, non waiver). Felony conviction on or after 27 Nov 2002 non waiver. Prior to 27 Nov 2002 is waiverable.My last court date(dismissed on)25 Nov 2002. Problem is court clerk did not process the papers until 12 DEC 02. I am currently using a local attorney and trying to change the disposition date.
Can you give me any advice.

ANSWER: Ok, I am confused.  What are you CONVICTED of?  A domestic violence conviction is auto disqualifyer.  If you were not convicted of any, then you are fine.  

A felony conviction of any type of person to person violence is also disqualifying.  

The thing you have working for you is you have a concealed weapon permit, however, the Army/Guard regs are very hard to give leeway for any domestic violence charge no matter when it was committed.  Keep working with your recruiter and his NCOIC.  Push them to get a final call from the recruiting command in Michigan.  Don't let them drag it out.

Good Luck

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QUESTION:  AR 601-210 4-7 f (2) Qualifying conviction.
(2) Qualifying conviction. A state or federal conviction for a misdemeanor crime of domestic violence and any
general or special court-martial for an offense that otherwise meets the elements of a crime of domestic violence, even
though not classified as a misdemeanor of felony. A qualifying conviction does not include a summary court-martial
conviction or the imposition of nonjudicial punishment under Article 15, UCMJ. By DOD policy, a state or federal
conviction for a felony crime of domestic violence adjudged on or after 27 November 2002, will be considered a
qualifying conviction for purposes of this regulation and will be subject to all the restrictions and prohibitions of this
regulation. A person will not be considered to have a qualifying conviction unless the convicted offender was
represented by counsel or knowingly and intelligently waived the right to counsel, and, if entitled to have the case tried
by a jury, the case was actually tried by a jury, or the person knowingly and intelligently waived the right to have the
case tried by a jury; AND, THE CONVICTION- HAS NOT BEEN EXPUNGED OR SET ASIDE, OR THE CONVICTED OFFENDER HAS NOT BEEN
PARDONED FOR THE OFFENSE
, or had civil rights restored; unless the pardon, expungement, or restoration of civil rights
provides that the person may not ship, transport, possess, or receive firearms.

ARNG FY-07 Enlistment Criteria
1-18. Lautenberg Policy
a. The Lautenberg Convictions Policy applies to all NPS, GNPS, and PS applicants. Paragraph 3.A.C of the HQDA
Message dated 23 Oct 03 states that “…a felony crime of domestic violence adjudged on or after 27 Nov 02, shall be
considered a qualifying conviction for the purposes of this message…”
(1) Applicant(s) with Misdemeanor convictions of domestic violence. Lautenberg is retroactive. Regardless of
when the conviction occurred, Soldiers may not enlist or reenlist with this type of conviction because the Soldier is forbidden
from carrying a weapon.
(2) Applicant(s) with Felony convictions of domestic violence occurring on or after 27 Nov 02. According to DoD
policy, any person with this type of conviction is prohibited from carrying a weapon, thus they are ineligible to enlist or
reenlist. DoD policy contains guidance regarding administrative procedures.
(3) Felony convictions of domestic violence occurring prior to 27 Nov 02. According to DoD policy, these
Applicant(s)/Soldier(s) do not have a “qualifying conviction”, accordingly, they may still carry a weapon.
b. Prior service Soldiers may reenlist without adverse policy effects.

This was made a non public record, Yes i understand this does not apply to the goverment.

Under both policies it is considered a non qualifing conviction.  


ANSWER: You still did not answer my question about what were YOU convicted of, if anything?

Right now there is a freeze on any felony convictions, period, and it has not been lifted as of yet.  It went into effect earlier this year.  As far as the Lautenberg is concerned, if you carry a weap, then you should be ok.  

The problem is the military does not like going anywhere near someone with a domestic conviction.  It all depends on how much your recruiter is willing to go to bat with you, which is why I would make sure you get his NCOIC involved if you if you feel the need.

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QUESTION: I had a misdemeanor domestic violence charge that was dismissed under the Spousal Abuse Act.

It is only considered a conviction until it is dismissed.

Answer
I never heard of anything being considered a conviction until it was dismissed.  

The way the regs work, it it was dismissed for any other reason than not guilty, it counts as a conviction.  So if was dismissed becuase you went to anger managment classes, it still ocunts against you.  If it was dismissed becuase you were on good beahvior for a year, it still counts.  It only doesnt count if you were found not guilty.

Thats the standard we use.