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Everyone has seen the criminal dramas on TV and has a general understanding of what it means to be arrested, but in the military, an “arrest” is quite different. This difference has caused many problems for service members and veterans who find themselves in this unfortunate situation. Traditionally, you picture the police placing you in handcuffs, advising you of your Miranda rights, driving you to the station, taking a mug shot, detaining you in a cell, and issuing you a citation. While this could occur in a military environment, it rarely, if ever, does. Instead, the suspect is directed by his Commander to report to the unit so that he or she can be escorted over to the Criminal Investigation Department (CID), Naval Criminal Investigative Service (NCIS), Office of Special Investigations (OSI), or other appropriate agency. Once there, an agent takes the suspect back to an interview room and begins asking a series of questions about their background while building rapport in the hopes of getting a statement. At some point, the agent reads the suspect their Article 31 rights, which are similar to Miranda rights, except they are required to advise of the specific offense for which they are suspected. If the suspect invokes, then they are only detained long enough for their escort to return to pick them up. Somewhere during this process, the agents may fingerprint the suspect and/or take DNA, but the suspect is advised that this is standard protocol, and depending on what happens with the case, the fingerprints and DNA may be destroyed.
Does this sound like an arrest? Maybe, but what if you add the fact that your Command never decides to take action against you and instead you are able to move forward with your career. Does it still sound like you have a criminal record? Probably not. Unfortunately, an arrest record is created and routed up to the federal criminal databases, and the suspect has no idea that the record exists. They may then apply for jobs after the military and be turned down due to flags appearing in their background check, and it is only after further inquiry that they find out they are listed as being arrested for a crime that they failed to disclose to the potential employer. This is even more problematic if the individual is applying for, or renewing, a security clearance.
Now adjusting the situation just a bit, instead of the Command taking no action, they issue an administrative action in the form of a written reprimand or non-judicial punishment (NJP). NJP is not conducted through a court (i.e. non-judicial) and the only punishments are administrative employment actions (i.e. reduction in rank, extra duty, restriction to a particular area, forfeiture of pay, and/or a reprimand). Numerous service members have NJPs in their records and continue to serve for years leaving honorably through a voluntary discharge or retirement. Others are separated shortly after. The problem arises when someone fills out the close-out paperwork for the law enforcement report—and they improperly mark the finding of guilty in the wrong section or simply fail to complete the paperwork. Now, when the veteran is applying for jobs or attempting to purchase a firearm, it appears to the employer or public official as though he or she has a criminal conviction or that there is an active case pending—both of which have negative consequences.
So, what do you do in these situations? First, you need to be proactive in verifying what is in your record and visible on a background check. If the information is wrong, you can’t simply call up the investigators and tell them to change it. It has already been reported to the FBI. There are ways to get the record corrected and in some cases expunged, but you need to provide a detailed written submission, with supporting evidence, to show why the record is wrong, under what basis you are seeking to have it corrected, and what you believe it should be corrected to. It is vital that this be done in a thorough and articulate manner because if the original law enforcement agency denies relief, the service member or veteran can only apply to the applicable board for correction of military records in the hopes that they will overturn that decision, which is a heavy burden, takes a significant amount of time, and requires even more evidence to support the correction since it is presumed that the agency correctly completed the paperwork.
In either action, you will want to be sure that you have all of your ducks in a row before you start, to ensure yourself the best chance of success so that you do not spend the rest of your life with a “conviction” on your record that does not actually exist.
As a Senior Associate at Tully Rinckey PLLC, Allison Weber focuses her practice on all aspects of military and national security law. She provides security clearance representation on matters ranging from assisting clients in proactively disclosing information to avoid issues, completing applications, answering letters of inquiry, responding to Statements of Reason, and attending revocation hearings. She can be reached at firstname.lastname@example.org or at (716) 439-4700.