Expert: MARK A. HOWELL - 5/5/2009

Question
QUESTION: My name is Kevin and I am currently 18 years old. Currently I am trying to enlist into the Navy. However, it seems my past juvenile criminal history will not allow it.
As a juvenile I racked up a burglary charge and possesion marijuana. I succesfully completed probation and after turning 18 I petioned the courts for a "Motion to Destroy Records" which was granted. Mind you, I live in Arizona
I made some phone calls and found out that the local pd doesnt report juvenile fingerprints to the FBI unless tried as an adult.

However, even though I was granted the motion to destroy records that does not pertain to local pd records which contain arrest information only-no disposition
I know only law enforcement can see these local police department records as well as the military

So, do I have to obtain a waiver for these arrests even though there is no record of a disposition or any court action in that matter-only the arrest info?
I am correct in saying the military is able to see the records like the local enforcement can?

ANSWER: Kevin,
Congratulations on successfully completing your probation and getting your records "expunged."  As you discovered, a very important record will remain in existence for the rest of your life.  The original ARREST RECORD which contains the arresting officers notes, reports, photographs, confessions, or any other evidence seized or testimony taken during an arrest.

What was deleted or expunged was The RECORD OF THE ACTION OF THE COURT.  This document is usually the order of probation that you signed and contains your plea.

Different Branches of the Services differ in what they are willing to waiver, although they all have the same initial qualification requirements.  According to Navy regulations you must admit to the Recruiter that you have an "expunged record."  The recruiter doesn't need or want the details.  The Navy WILL accept a person with an expunged record if they apply for and receive a waiver.  The recruiter will help you through the waiver process and submit it for you.

The FBI is the government agency that does the initial background check for the military.  An expunged record may not come up on a regular police and court records check, but it will come up in an FBI background check for the military, especially if your military job requires a security clearance of SECRET or above, so it's important you admit to it now and obtain a waiver.  Even though they don't report it to the FBI, the FBI can find it.

Good luck and thanks for wanting to serve.
Colonel H



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

QUESTION: Actually, and I apologize for mistating this, but the arrest record is also included in the motion. Come to find out the local police department was just miles behind in paperwork(partly due to budget cuts) and hadn't acted on the judge's orders yet.

Yes, the FBI. I'll definetly be disclosing all information now rather than later.

The Navy recruiter did not sound so optimistic about sending a waiver for me and even went on to say it wouldnt be approved even though it was "expunged"

However, the Army was very willing to work with me because my record is "expunged".
I'm in the process of getting the waiver started there and going to MEPS. He explained I had to test clean(because of the possesion) and what not first which is not a problem.
My actual question is this:
Now there are no records of my infractions and the recruiter's initial background check came back clean-
what do i have to do for the waiver process and disclosing the info for my charges since there is no existing information?
And does the army count possesion of marijuana as a serious offense and do they usually grant more than one serious waiver(i.e. the burglary + the possesion?)
I know you can't predict it, but just asking your opinion.  

Answer
Kevin,
Smart move, going to the Army recruiter.  Sounds like the Navy guy just wasn't willing to take the time to work with you.  It's a shame, but sometimes that happens.

According to the Army enlistment regulations, "The waiver procedure is not automatic, and approval is based upon each individual case. One of the considerations in determining if a waiver will be granted is the individual's ability to adjust successfully to civilian life for a period of time following his or her release from judicial control.  In processing waiver requests, the Army shall require information about the "who, what, when, where, and why" of the offense in question; and several letters of recommendation attesting to the applicant's character or suitability for enlistment. Such letters must be from responsible Community Leaders such as school officials, ministers, and law enforcement officials."

So the longer you've been free from legal trouble, the better your chances.  Usually they'll want 3-5 letters of recommendation.

Another direct quote from the Army enlistment regs is: "Drug Disqualifications:  "Soft drugs" such as marijuana and hashish are usually waiverable, while "hard drugs" such as cocaine and heroin are disqualifying.  In general, past drug abuse is waiverable, but if it led to other problems such as violence, then you will have more trouble getting a waiver."

In MOST cases, drugs are NOT permanently disqualifying.  However, these are factors that you should mention to your recruiter.  If you are later found to have lied or not informed the military about your legal past, you may be discharged and prosecuted. Remember there is no penalty or punishment in talking about your situations with your recruiter, so always check with him first!

In my opinion, if the legal system was willing to wipe clean your record, then that's going to be good enough for the Army.

Good luck soldier,
Colonel H