Expert: MARK A. HOWELL - 4/15/2009

Question
QUESTION: My name is Eric I am 18 years old and trying to join the Navy. The problem is I am having some difficulties. I'm told I cant join because of a class d felony that I got when I was a juvenile. The thing I don't understand is that I was never convicted. I called my county prosecutor and I was told that the felony doesn't show on my record. Before I found out that I wasn't convicted I had already told my recruiter about it and he was trying to get a waiver. If the felony doesn't exist on my record then how is it keeping me from joining? Do you think my recruiter has just given up on me? What do you think I should do? And lastly, would I be able to join any other branch or would I just have the same issues?

ANSWER: Eric,

A  Class D Felony  is serious, even as a juvenile.  It can be anything from Attempted Burglary in the 2nd Degree to Attempted Manslaughter in the 2nd Degree, with lots in-between.  The felony exists, it's just that most folks can see it.  I imagine your records were sealed because you were a juvenile, however before you join the military they run a background check on you via the FBI.  The FBI CAN and WILL unseal your records and peek inside to determine how bad of a boy you were.  Only a government agency (FBI) can unseal your records, so that's probably why it doesn't show up anywhere.

You recruiter did the right thing.  You were truthful about the felony so he applied for a waiver in advance to try and head 'em off.  The worst thing you can do is not tell them about a problem and let them discover it themselves.  Then they think you're trying to hide something.

Receiving a waiver (or not) takes awhile, sometimes up to two months.  So your recruiter is anxiously awaiting, just like you.

If you indeed were not convicted, and you did not serve community service,  probation or something, you SHOULD be given a waiver.  It just takes time, be patient.
If you do not receive a waiver, you'll have the same problem in any branch of the Service.

Show my answer to your recruiter and see if he agrees.
Good luck, and thanks for wanting to serve.
Colonel H

---------- FOLLOW-UP ----------

QUESTION: My recruiter has already told me that I am not eligible because he cannot get a waiver. Is there any way that I would still be able to pursue this. If I am able to contact my Governor and speak with him in person would I somehow be able to get around it? I spoke with my former juvenile probation officer and she said that I should try again after I graduate because my records will be expunged, do you think it will make a difference? Does it matter what I got in trouble for or do they just see that I had a felony and say no can do? She also said that the felony had been adjudicated because I was a juvenile. What exactly is adjudicated? Is it possible to be convicted by someone other than a judge? If so, who? I just don't see how the felony can even be on my record when everyone tells me it isn't? Is it possible to have a "BS" felony erased so that I can join? I have a lot of questions I know, but I am just trying to start my life. Thank you so much for reading this and giving me your input. You have been more help than anyone else I have talked to.

Answer
Eric,
Short answer is, it's possible.

By chance, are you from Texas?  I'm just curious since Deferred Adjudication is commonly used in Texas where the jails are overcrowded.

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  probation disappear when the probation is over.  They are public records, and they will never go away on their own.

The reason everyone can't see a felony on your record is because you were a juvenile it's nor releasable to the public.  Only a government agency like the FBI has the right to dig deep enough to see it.

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.

Even though Deferred Adjudication is not a conviction, employers treat Deferred Adjudication as if it were a conviction, and even though your charges will be dismissed with a final court disposition stating "NO FINAL CONVICTION" as well as "NO FINDING OF GUILT", the person is usually treated as if he/she had actually been convicted.  I know it's not fair, but it happens.

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.

Only a judge can convict you.

If indeed your record is Expunged then that's great.  They'll wipe your record completely clean.  So trying again after you graduate and your records are expunged is a very good idea.

Don't limit yourself to just the Navy.  Basically, all the Services are pretty much alike except for their mission.  Try the other Services also after you graduate.

Best of luck and thanks for wanting to join the military.
Colonel H