Expert: John L - 5/2/2010

Question
QUESTION: Mr. Lewis,

I have a question for you regarding Army Regulation 601-210, 4–32. (Rules governing processing of moral waivers.)  It says under this section, "A person arrested, cited, charged, or held for an offense or offenses and allowed to plead guilty to a lesser offense will list the original charges and also the lesser offense to which a plea of guilty was entered. For example, a person arrested for grand larceny and 2 counts of criminal possession of stolen property pled guilty to 2 counts of criminal possession of stolen property, value of less than $500. In this example, the applicant requires a misdemeanor waiver."

So using this logic, say someone is charged in a civilian court for what the Army considers a serious offense such as arson, aggravated assault, embezzlement, or larceny.  The offender does not receive an adverse disposition for the offense (such as a deferred prosecution) and the charge is reduced and amended to a misdemeanor or gross misdemeanor which the Army would consider a misdemeanor under section 4-10.  For example, the arson would be reduced down to an offense of criminal damage to property or criminal mischief, the aggravated assault would be reduced to a charge of assault and/or battery, and the larceny/embezzlement charges were reduced to a stolen property charge under $500.  Would these charges require a misdemeanor waiver or a felony waiver if they were simply amended charges which did not receive any type of deferred prosecution?  I'm curious as to how the Army handles these types of waivers.  Would they even need a waiver if they had only one amended misdemeanor conviction and under four minor non traffic offenses or six traffic offenses in combination with the misdemeanor?  It says in 601-210 that you only require a waiver if you have, "received a total of four civil convictions or other adverse dispositions for a combination of minor non traffic and misdemeanors (for example, 1 misdemeanor and 3 minor non-traffic convictions)."

I read on a SF-86 security clearance application the following story:

"Applicant is 31 years old.  After graduating from high school, he enlisted in the Army Reserve in April 1995 under the Delayed Entry Program. Following an injury he received in a fight,
he was discharged from the Army Reserve in April 1996 under an Entry Level Separation. Tr. 53-54.  In January 1996, he was charged with recklessly endangering another person, criminal mischief, and criminal conspiracy. He participated in a drive-by shooting incident where one of his accomplices opened fire on the home and automobile of an individual his accomplice “disliked.” Although Applicant had a loaded weapon at the time, he stated he did not fire his weapon during the course of this drive-by shooting, and no one was hurt. Tr. 49-52. He was found guilty of criminal mischief, and as a result of his participation in this offense was ordered to pay $800 restitution, awarded probation, and as part of an agreement with the court, agreed to enlist in the Army."

Utilizing Army Regulation 601-210 coupled with the above narrative, I believe that if a felony is amended to a misdemeanor or gross misdemeanor without receiving an adverse disposition such as deferred prosecution, the applicant only requires a misdemeanor waiver (if they have more than 1 misdemeanor and 3 minor non-traffic convictions or six traffic convictions.)  They would be eligible for enlistment, however they would probably not be eligible for a security clearance.  Is this information that I have correct or incorrect?

Thank you for your assistance,

Joseph

ANSWER: Its a fine balance,  what matters is what you were convicted of.  Though the original is listed.  As long as the charge wasn't reduced becuase you pled guilty to the lesser.  It is not a fair system, but it does not change the fact that the higher crime was committed.  If they change it to a lesser due to eveidence or charged wrong to begin with, it is ok.  Regardless, count on a waiver being submitted to cover ones butt.

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

QUESTION: So would the person applying, like in the above example, require a single misdemeanor waiver for being convicted of misdemeanor level criminal mischief or would he need to submit multiple felony level waivers for reckless endangerment, criminal mischief, and criminal conspiracy?  This is the only point that I don't understand.  I'm just curious how the mechanics of it works.  It must have been a misdemeanor level waiver under section 4-10 because otherwise he would be trying to waive multiple felony level charges which I think it damn near impossible with the Army.  So ultimately what you're saying is that if you are convicted of a misdemeanor then you are waived at the level for which you are convicted at UNLESS it's for an adverse disposition such as deferred prosecution.  Correct?

Answer
Correct.  No felony waivers are even allowed anymore and probably never will be again.  If one was charged with a felony, but had to be on good behavavior for a year, take a class and pay restitution, THEN it was dropped to a misdemenaor, we count it as a felony, because there were conditions being attached to it being dropped to alower offense.  That is counted as a felony becuase those things are considered diversion.