Expert: MARK A. HOWELL - 10/17/2009

Question
Hello Sir,

I'm a DEPer Shipping this month for Hospital Corpman.

Through research I found this

COMNAVCRUITCOMINST 1130.8H – VOLUME II – CH1
Chapter 2, Section 9, Page 10
EXHIBIT 020903. RATING/PROGRAM WAIVER ELIGIBILITY FOR APPLICANTS WITH ALCOHOL AND DRUG ABUSE
Block 'B' States:
Any "alcohol-related offense(s)" renders the applicant "ineligible for HM and HMDA" programs!

I got a MIP when I was 20. I was turning 21, 1 month from that. Not to mention I only drank 1/3 of a single beer. Im not telling you this to make myself seem innocent but more for comic relief :P. I take full responisiblity for my mistake. I didn't get arrested, just fined. (I turned 21 before my time expired to pay that ticket). This was the first time I even talked to a Cop. Due to my first offense I went through Defer Judification, though volunteer work and a Drug Awareness Class, I was told It would not be on my record.  

I told this information to my Recruiter but they never told me about the HMs dis-qualification. My Recruiters told me that It wouldn't even come up (I suspect a lie but I question the authenticity of my defered Judification).I was not aware of the disqualifing element to my rate, I found that out today. So my question is this.

1: Does Defered Judification hide my background like the Judge said?
2: How can I see if my Record is Clean or Not. On one side I have the Judge who said it would be clear and the other I have the Power of the Military to do FBI background checks.
3: What advice can you give me? My Recruiters are not trustworthy in my eyes anymore, they never told me it was a dis-qualification nor do I think they knew ...but now its serious because this can cost me my job. At this point I might have to tell about my MIP at MEP because if I don't and they find it I'm going to get punished and I most surely won't become a HM. But if I tell the truth I still have hopes of getting a wavier and getting my job. Sir, I just don't know what to do. I just want to become a Hospital Corpman. There is nothing else Im destined to Do. I'm hoping you will say that I have nothing to worry about and that defered judification won't show my MIP. But if you say that its a risk and that the only way I can cover my tracks is to tell the truth. Well then I will do it.

Answer
Thomas,
Just curious, are you by chance from Texas?  I ask only because Deferred Adjudication is commonly used there.  Deferred Adjudication is a kind of probation in which the judgment (the adjudication) is put off (deferred).  If the probation is successfully completed, the case is dismissed.  Deferred Adjudication is NOT a final finding of guilt and it is NOT a conviction.  That does not mean, however, that the records of the arrest, or of the probation itself, disappear when the probation is over.  They are public records, and they will never go away on their own.   You need to file a motion for nondisclosure.  If the motion is granted, the records will be sealed.  Any criminal law attorney will be able to help you with it.  Basically, Motions for Non-Disclosure seal your criminal history in a way that allows the State to keep the record (and therefore knows about it if you are ever rearrested), but is prohibited from disseminating the information to the public.

Even though a successfully completed Deferred Adjudication will ultimately result in charges being dismissed by the criminal court, you must remember that two very important records will remain in existence and can be seen by the general public for the rest of your life.  These two records are:  (1) The ORIGINAL ARREST RECORD which contains the arresting officers notes, reports, photographs, confessions, or any other evidence seized or testimony taken during an arrest; and (2) The RECORD OF THE ACTION OF THE COURT.  This document is usually the order of probation that you signed in order to qualify for Deferred Adjudication.  This paper, with your signature on it, also contains your plea).

Even though Deferred Adjudication is not a conviction, employers, banks and lending institutions, insurance companies, schools, school districts, apartment managers, law enforcement agencies, etc. all treat Deferred Adjudication as if it were a conviction.  Even though Deferred Adjudication is NOT a conviction, and even though your charges have been dismissed with a final court disposition stating "NO FINAL CONVICTION" as well as "NO FINDING OF GUILT", you're usually treated as if you had actually been convicted.  That's just the way life is, i.e., mention jail and people automatically think Convict.

Deferred Adjudication is used by the courts to expedite cases, save money, and to keep the prison population down.  All too often attorneys advise their clients to take Deferred Adjudication because it's quick and easy for them and they collect a couple of thousand dollar fee for doing almost no work at all.  It's also a whole lot easier for you if you know you're guilty and don't think you can beat the rap.  All-in-all, still probably a wise choice.

So to answer your questions:
1.  It will hide it from everyone except a federal government agency.  And guess who does background checks for the military?  The FBI, a federal government agency.
2.  Trust me, your record is not clean in the eyes of the military, for the reasons explained above.
3.  You're smart to have done your homework and discovered the COMNAVCRUITCOMINST, which is an acronym for Commander, Navy Recruiting Command Instruction.  (The military is full of acronyms.)  Normally, that instruction refers to more serious infractions than MIP.  It's for DUIs, D%26D, and violent crimes committed as a result of alcohol.

I don't mean to get your hopes up, because it all basically depends upon how your recruiter words your waiver application.  If he thinks you have a shot at getting a waiver and becoming a HM.  Federal regulations require you to disclose your Deferred Adjudication to your recruiter.  After that, it's up to him to get you in.  Keep in mind, after you've been in for awhile you can always apply to cross-train into another career field.  Getting in is the hard part.  Maybe you can enter in the Emergency, Fire %26 Rescue career field just to get your foot in the door.  Emergency Medical Technicians make great HM.  Ask your recruiter.

I hope you get to realize your dream.
Colonel H