Expert: MARK A. HOWELL - 9/11/2009

Question
QUESTION: Hello Mr.Howell I hope you can help me out with this question.About 2 months ago I was at the recruiter and was trying to enlist into the Army,I went and took the ASVAB and scored and 82 and was told by my recruiter everything was good to go. After we got back to the office he ran my prints, and this is the problem, an incident came back on the FBI report that i thought had been dismissed, well it was dismissed because i had the nolle pros  paper. The charges that came up in the report were dismissed only days ago,5-6, from when i went into the office.The charges that i had on the report were for growing 1 single marijuana plant and paraphernalia, and some how i was charged with possession of a steroid, even though it was for the goat that we owned. when it came time for me to go to court,before i ever plead guilty, not guilt, or anything,the prosecutor handed me a paper that meant they were giving me PTI,or pre trial intervention, so that i would never be convicted and still have my rights.At the time when i signed the paper i was told that yes i would still be able to join the military. When I talked with the recruiter he told me once I got 24 credits that I would be fine and would be able to get a waiver, but when I cameback a month later he told me Obama changed something and now I cant get the waiver! Its extremely frustrating being told one thing and then something else happen. I guess basically I just want to get your opinion on the situation, if i should go see another recruiter, or if i have a chance at all, because this is something that I really want to do. So anything you can tell me on my situation would be appreciated and sorry for writing such a long question. thank you sir, mike

ANSWER: Mike,
Unfortunately they didn't tell you the whole story.

Pre-trial intervention (PTI), is a kind of probation in which the judgment is put off.  If the probation is successfully completed, the case is dismissed.  PTI 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 releasing the information to the public.  Only a federal government agency can peek into sealed records.  And guess who does the investigating for the military?  The FBI, a federal government agency.

Even though a successfully completed PTI 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 PTI.  This paper, with your signature on it, also contains your plea of guilty or "nolo contendere" (no contest).

Even though PTI 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 PTI is not a conviction, and even though your charges has been dismissed with a final court disposition stating "NO FINAL CONVICTION" as well as "NO FINDING OF GUILT", you will usually treated as if you had actually been convicted.

PTI 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 PTI 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 probably a wise choice.

So what the recruiter told you was true.  The quotas for 2009 are full and the only way you'd even stand a chance is to have some kind of college, at least 24 credits worth.

However, I'm going to tell you how to beat the system.  Wait 'em out.  In a few weeks (October 1st) the military begins a new fiscal year and the recruiters will be begging for recruits.  They'll process a waiver for you, providing you don't have any other legal or physical problems.

Your problems are minor and get waived all the time.

So go back and see him on October 1st and see how eager he'll be to recruit you.  If he doesn't, go somewhere else.  The recruiter is only in your town for your convenience.  You can go recruiter shopping in any town you like.

I had a case exactly like yours back in April from a guy in Texas.  He's now a Seaman Apprentice in the Navy.

Please let me know how it goes for you.
Colonel H


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

QUESTION: thank you sir, but i was reading in the army regulation manual and your sentence here"This paper, with your signature on it, also contains your plea of guilty or "nolo contendere" (no contest)".my original and only plea i ever entered was NOT GUILTY. the judge actually said, ill do it for you not guilty. i never plead guilty or no contest and recieved my nolle pros paper. thing is i could of beat it too but  every one told me this was beating u know? in the regulation manual it  says u have to have plead guilty,or no contest, but nothing of pleading not guilty. and the bi report that came back when i went the first time to the recruiter, it says on the rap sheet no plea entered, so do you think that could also help me out? considering regulations say specific things to the contrary? Thanks for giving me such a detailed and quick responce sir, to bad u couldnt come to florida and i go through you.

Answer
Mike,
Thanks for picking up on that, you're pretty sharp.  I get similar questions all the time and just fell into the "automatic answer" mode.

In your case you plead Not Guilty and were given Nolle Pros, thus finding you not guilty of all charges. Usually a motion for "Nolle Prosequi" indicates that the prosecution does not want to pursue the case any further, meaning the prosecution knows it does not have enough evidence that a crime has been committed, and therefore must consider you innocent.  The charges can be reinstated if new information comes to light or the circumstances of the case change during a given period of time, typically 12-13 months.

What I said about waiting until October 1st is still very true.

Also, don't go back to the same recruiter.  Go to the website Goarmy.com and chat live with a recruiter (after Oct 1).  The guys there are from recruiting headquarters and will help you out immensely.  Simply tell them you didn't like or get along with your local recruiter and prefer to work with them.  Tell them the whole truth and I'll bet you'll be a wearing a green uniform in no time.
Good luck soldier.
Colonel H