Expert: MARK A. HOWELL - 9/26/2009

Question
In 2006, I was arrested for Attempted Theft, which is a Class A misdemeanor. I was 19 and very stupid. I was given deferred adjudication with 6 months probation. I completed it in 2007. This year (2009) I filed for an Order of Non-Disclosure and received it. I would have liked an expungement, but Non-Disclosure is the best that can be done for this offense. In May 2009 I graduated with a Bachelor's Degree in Electrical Engineering. I would like to be commissioned as an officer in the Air Force, but am wondering if I would be able to be approved for a waiver. I have not been in trouble ever since this incident occurred, not even a speeding ticket. All I have been doing is focusing on school and work.

Thank you in advance for looking at my question.

Answer
Jay,
By chance are you from Texas?  (No need to answer) I'm just curious since Deferred Adjudication is commonly used in Texas where the jails are overcrowded.  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 big 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 probably a wise choice.

As far as the military is concerned, having an expungement would do no good, so don't waste your time and money.

Here's why I say that.  An expunged record will not be seen by the public, meaning it will not come up on a regular police and court records check.  Only a federal government agency can view an expunged record.  And guess who handles investigations for the military?  The FBI, a federal government agency.  Although lawyers often say that you'll never have to admit to ever having a record, that's not true when you're dealing with the FBI.

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.  Basically, a Motion for Non-Disclosure seals 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.  Still it’s a good option.

Even though Deferred Adjudication is not a conviction most employers, banks and lending institutions, insurance companies, 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 will usually be treated as if you had actually been convicted.  That's just the way society is.

You shouldn't have any trouble receiving a waiver for a single misdemeanor.  Officer candidates with multiple misdemeanors or felonies are usually denied.  However, we want to stack the deck in your favor, so just to be safe wait a few days until October 1st.  That's the beginning of the military's new fiscal year and you want to be first in line to apply for a waiver.  Your chances will be much better then.

If that's your only problem then I think you'll be in great shape.
Please send me a follow-up sometime and tell me the good news that you've been selected for OTS.
Colonel H