Army Criminal History Waivers
Nobody has a right to serve in the United States Army. Federal law and Department of Defense directives give the military services significant leeway in determining who they want to accept for enlistment or commission.
An applicant's criminal and "moral" history plays a large role on whether or not they are eligible to join the United States Army. It's important to note here that federal law requires applicants to divulge ALL criminal history on recruiting applications, including expunged, sealed, or juvenile records.
Additionally, in most states, such records are accessible to military investigators, regardless of what you have heard to the contrary.
The process begins with an interview by the Army Recruiter, asking the applicant about any records of arrest, charges, juvenile court adjudications, traffic violations, probation periods, dismissed or pending charges or convictions, including those which have been expunged or sealed. Providing false information, or withholding required information is a federal offense, and individuals may be tried by Federal, civilian, or Military Court.
If the applicant admits to an offense or the recruiter has reason to believe the applicant is concealing an offense or a record is indicated during the Entrance National Agency Check (ENAC), then the recruiter will request a complete criminal record from local law enforcement agencies.
Some offenses can be waived, and others cannot.
Recruiters themselves, do not have waiver approval/disapproval authority. Some waivers can be approved/disapproved by the Recruiting Battalion Commander, other waivers must be approved/disapproved by the Commanding General of the Army Recruiting Command.
It's important to note that applicants who require a waiver ARE NOT qualified for enlistment, unless/until a waiver is approved.
The burden is on the applicant to prove to waiver authorities that they have overcome their disqualifications for enlistment and that their acceptance would be in the best interests of the Army. Waiver authorities will consider the "whole person" concept when considering waiver applications. If a waiver is disapproved, there is no appeal (the waiver process itself is the appeal -- the individual is not qualified for enlistment and submits a waiver request, appealing to Army recruiting authorities to make an exception in his/her particular case).
Applicants with a criminal history (regardless of disposition) or questionable moral character, but because of dismissed charges, plea bargains, or release without prosecution, must have a suitability review for determination of enlistment. Reviewer will determine if a personal interview with the applicant is required, and if so may be accomplished telephonically. The suitability review team determines whether a waiver is required, regardless of how the criminal offense was disposed of by the courts.
Suitability review will be conducted on the following charges (regardless of disposition) prior to any moral waiver processing on all applicants:
- Five or more minor nontraffic charges
- Two or more misdemeanor charges
- Combination of four or more minor nontraffic or misdemeanor charges
- One serious criminal misconduct charge
Offenses/Moral Behavior Which Can Be Waived
- Minor Traffic Offenses. Received a civil court conviction or other adverse dispositions for six or more minor traffic offenses where the fine was $250 or more per offense.
- Minor Non-Traffic Offenses. Received four or more civil convictions or other adverse dispositions for minor nontraffic offenses.
- Misdemeanor Offenses. Those with two, three, or four, civil convictions or other adverse dispositions for what the Army considers to be a misdemeanor offense require a waiver. Waivers are not authorized for individuals with more than four civil convictions or other adverse dispositions for misdemeanor offenses.
- Combinations. Received a total of four civil convictions or other adverse dispositions for a combination of minor non-traffic and misdemeanor (for example, 1 misdemeanor and 3 minor nontraffic).
- Serious Offense. Any conviction or adverse disposition for what the Army considers a felony, requires a waiver. Again, the Army has its own list of what it considers to be a serious offense.
A "conviction" is a finding or a plea of "guilty." The following are also considered "convictions" by the Army:
Applicants who have entered a plea of "Nolo Contendere" that was accepted by the court despite later processing in the same case to permit dismissal, expungement, amnesty, pardon, or clemency based on any of the following are considered to have a conviction:
(1) Absence of later violations.
(2) Evidence of rehabilitation.
(3) Satisfactory completion of a period probation or parole.
(4) Any other legal appeal that does not change the original finding on its own merit.
An attempted offense will be classified in the same category as a successful attempt. (For example, attempted possession of stolen property, value of less than $250 , will be classified as a misdemeanor under "stolen property, knowingly received, value of less than $250.")
A person arrested, cited, charged, or held for an offense or offenses and allowed to plead guilty to a lesser offense must list the original charges and also, the lesser offense to which a plea of guilty was entered. (For example, 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 $250.) In this case, the person requires a misdemeanor waiver. However, waiver is not needed if an arrest or questioning does not result in referral of charges, or if charges are dismissed without a conviction or other adverse disposition.
Even if a waiver is not required, the arrest must be reported.
Other Adverse Disposition
This term includes all law violations which are not civil court convictions, but which resulted in an arrest or citation for criminal misconduct, followed by the formal imposition of penalties or any other requirements upon the offender by any governmental agency or court.
Examples of other adverse dispositions. Some examples of adverse dispositions include-
- Admission into diversionary or similar programs.
- Admission into an adult first-offender program.
- Deferred acceptance of guilty plea program sorprobated sentence.
- Tried as a youthful offender.
- Enrollment in supervision programs.
- Orders to pay restitution, pay a fine, serve community service, pay court cost, attend classes, or serve probationary periods which do not constitute civil court convictions.
- Unconditional suspended sentence and unsupervised unconditional probation. These terms are defined as a court-imposed suspended sentence or probationary status.
Some states have procedures for a later "expunging of the record," dismissal of charges, or pardon (on evidence of rehabilitation of the offender). Such action removes the "initial conviction" or "other adverse disposition" so that, under state law, the applicant has no record of conviction or adverse juvenile adjudication. Despite the legal effect of this action, a waiver of such an applicant may be required and the underlying facts must be revealed.
Applies despite later proceedings to delete an initial determination of guilty or commission of alleged misconduct from court or agency records. These must still be reported, and appropriate waivers processed. Examples of later proceedings used in Federal and State courts include-
- Record sealing
- Setting aside the adjudication or reopening cases to change the original findings/pleas of admission of guilt to not guilty
- Dismissal of the original petition
Offenses/Moral Behavior Which Cannot be Waived:
- Intoxicated or under influence of alcohol or drugs at time of application, or at any stage of processing for enlistment.
- Criminal or juvenile court charges filed or pending against them by civil authorities. Special Instructions: Pending charges include unpaid traffic violations. Authorized reception battalion commanders and Initial Entry Training (IET) commanders may consider that, in certain meritorious cases, unpaid minor traffic tickets that are subsequently paid after entry did not constitute fraudulent entry. In those limited circumstances, separation processing for fraudulent enlistment is not required. All other cases meeting the provisions of fraudulent entry criteria must be processed in accordance with AR 635-200.
- Persons under civil restraint, such as confinement, parole, or probation.
- Subject of initial civil court conviction or adverse disposition for more than one serious offense. (Note: Applicants with juvenile felony offenses who have had no offenses within 5 years of application for enlistment may be considered for a waiver in meritorious cases)
- Civil conviction of a serious offense with three or more other offenses (other than traffic)
- Subject of initial civil court conviction or other adverse dispositions for sale, distribution, or trafficking (including "Intent To:) of cannabis (marijuana), or any other controlled substance.
- Prior service military with an RE code of "4"
- Persons with a Bad Conduct or Dishonorable discharge.
- Applicants having history of chronic cannabis (marijuana) use or psychological cannabis dependence (as defined in AR 40-501).
- Persons with prior service last discharged from any component of the Armed Forces for drug or alcohol abuse, or as rehab failure during their last period of service.
- Three or more convictions or other adverse dispositions for driving while intoxicated, drugged, or impaired in the 5 years preceding application for enlistment.
- Confirmed positive result for alcohol or drugs (test administered at MEPS)
- Persons with convictions or other adverse dispositions for 5 or more misdemeanors preceding application for enlistment.
Waivers cannot be issued for charges pending, or for individuals who are currently undergoing restraint or probation. See waiting periods below. Additionally, an applicant who, as a condition for any civil conviction or adverse disposition or any other reason through a civil or criminal court, is ordered or subjected to a sentence that implies or imposes enlistment into the Armed Forces of the United States is not eligible for enlistment unless
- The condition is removed by the same or higher authority imposing sentence.
- The condition is removed by virtue of expired period of sentence.
- The condition is over 12 months from imposition and the court, city, county, or state no longer obligates the applicant to this condition.
Unless otherwise stated on waiver cover sheet or document, waivers granted under this chapter are valid for 6 months from approval date unless a change in status occurs. (Exceptions are DEP/Delayed MSO personnel whose waivers are valid until RA enlistment if no change occurs in qualifications.) Persons who acquire additional offenses or disqualifications after waiver approval must resubmit waiver for reconsideration before enlistment.
Recruiting personnel will not:
- Take part directly or indirectly in release of a person from pending charges so that he or she may enlist in the Army as an alternative to future prosecution or further adverse juvenile or adult proceedings. Equally important, recruiting personnel will in no way contribute either directly or indirectly, to the false notion that the Army condones such a practice. Persons subject to a pending charge are not eligible for enlistment therefore, they are not eligible for preenlistment processing to determine mental or medical eligibility.
- Take part in any way in obtaining release of a person from any type of civil restraint so that he or she may enlist or complete enlistment processing to determine enlistment eligibility. The term civil restraint includes confinement, probation, parole, and suspended sentence. Accordingly, persons under the type of civil restraint that makes them ineligible for enlistment are not eligible for processing to determine mental and medical eligibility for enlistment.
- Process any person who has a doubtful criminal status. For example, while not classified as a specific "pending charge," an applicant may have a possible indictment or arrest pending; further, the recruiter may have obtained information that indicates the applicant's character may be questionable. These situations cannot be defined as an absolute in the qualification or disqualification process. When doubt exists as to the possible pending arrest, indictment, or pending nature of an offense, clarification must be obtained through the chain of command. As an example, clarify, via the chain of command, an applicant's eligibility and "questionable moral character if the applicant claims no arrest record and no pending charge, but local law enforcement officials indicate that the applicant is a suspect and it is possible that charges are about to be filed.
The waiting period following release from civil restraint gives the person a chance to show satisfactory rehabilitation. It gives the Army time to evaluate the extent of the applicant's rehabilitation.. Waiting periods following civic restraint or waiver submission are as follows:
- If an applicant was on parole, probation, or suspended sentence, a 30-day waiting period after period of civil restraint has been concluded is required before processing or a waiver can be submitted.
- If an applicant had confinement as a juvenile or an adult for less than 15 days, a 3-month waiting period is required before an applicant can process or submit a waiver.
- If an applicant had confinement as a juvenile or adult for 15 days of more, a 6-month waiting period is required before he or she can process or submit a waiver. As an exception, the Recruiting Battalion Commander may waive up to 3 months of the 6-month waiting period if the applicant is sentenced to pay a fine and, as an alternative, served a confinement period. Written verification is required from court imposing confinement. Any exception granted by the BN CDR must be annotated in the Remarks section of the DD Form 1966 as well as noted on the waiver memorandum if a waiver was required.