Joining the Military With A Criminal Record

Joining the military with issues in your past, such as a criminal record, is not impossible, but much depends on the age, nature, and severity of the issues that led to the run-ins with the law.

DoD ‘Moral Standards’

This issue comes up because the Department of Defense has a set of criteria it will consider for criminal record waivers and a list of issues that can never be waived. There are both felonies and misdemeanors that are technically waivable, and certain crimes (felonies or not) that can never be waived.

Under the “never waived” category? Any form of pretrial restraint generally renders the applicant ineligible for the military. That includes being released on bond or parole. Certain violent offenses, drug trafficking, and certain financial misconduct may never be waived.

All waivers are handled on a case-by-case basis, and applicants should allow the recruiter to make the determination instead of counting themselves out of the running.

Past Precedents

It’s easy to assume you are barred from military service if you have a criminal record. And in many cases, that assumption might be absolutely correct, but not always.

Much has to do with the Department of Defense’s current staffing needs for those in uniform at the time. When the Army, Navy, Air Force, and Marine Corps are not hurting for new recruits or not having trouble getting people to re-enlist, you may find getting approved to join your chosen branch of military service harder to do with issues in your personal history such as arrests, drug use, convictions, etc.

And some branches of service may not accept those with “borderline” issues in their personal history, regardless of what other branches of service are doing. It all depends on the circumstances present at application time.

Talking about these issues in the hypothetical is one thing, but what has the Department of Defense actually done in this area? Consider a report by CNN.com from 2008 titled “Army, Marines give waivers to more felons.”

That report includes the following:

“Pentagon statistics showed the Army allowed 106 convicted burglars to enlist in 2007, up from 36 the year before. It also granted waivers to 43 recruits convicted of aggravated assault that year, up from 33 a year before, and to 130 people convicted of possession of drugs other than marijuana, a rise from 71 in 2006.”

This same report includes mention of two others who enlisted in 2007 with records of “making terrorist or bomb threats,” according to the CNN article, which mentions former Rep. Henry Waxman, D-Calif., who was at the time Chairman of the House Committee on Oversight and Government Reform, as the source of this information.

As you can see, enlisting in the military with a history of legal issues isn’t as clearly defined as some may think.

One Example: Army Standards

Here’s a good example of how the Army handles its moral conduct waiver issues. According to the Army’s official site, a moral waiver is necessary when an applicant comes to the recruitment process with a conviction or “other adverse adjudication” that may include but is not limited to:

• Fines
• Confinement
• Probation
• Parole
• Pardons
• Applicants who have been ordered to submit bail or collateral “for a violation of any law”
• Certain expungements
• Juvenile offenses.

In recruitment situations where these issues are present, the Army requires a waiver application and approval process. The waiver requires personal statements from the recruit giving full details of all contact with law enforcement as relevant to the waiver.

Supporting evidence, such as letters from friends and family, court documents, and other paperwork, is required to support your case. Waivers are not automatic, and the review of the waivers takes time.

Recruits should know that time is of the essence. There is a limited amount of time you can be given to apply for the waiver and have it considered by an Army board. Those with serious crimes under review should know that “major misconduct” offenses require a General Officer endorsement, and there is an eight-week deadline for submission before the board convening.

Not all branches of service handle these issues in the same way. The Marine Corps, for example, seems to be the least forgiving of all the services where waivers are concerned. One military-oriented publication notes that the Marine Corps handed out more waivers for medical issues in 2017 than for issues related to misconduct or legal trouble.

You may have an easier time obtaining a waiver in the Army, Navy, or Air Force than in the Marine Corps, depending on recruiting issues at the time.

Enlisting In The Military

Criminal record or not, all who want to enter military service are required to submit to a background check that includes questions about past legal issues. You are likely to be asked, in a recruiting office setting or something similar to it, the following question:

“Have you ever been charged, cited, arrested, fined, or held in custody by a law enforcement agency or official?”

Answering that question truthfully is a step closer to a successful enlistment. Lying about your background doesn’t help, as the background investigation will uncover any official records that are accessible that may or may not include sealed or expunged records. Sealed or expunged status is not a guarantee the record won’t come up in the investigation. Failing to disclose these can hurt your chances at being accepted into the military.

Lying And Fraudulent Enlistment

Some may lie about their history to a recruiter. And some may even get away with the lie long enough to be given a slot in basic training and beyond. But those who think they’ve succeeded in these instances often do not realize that they can be punished for fraudulent enlistment long after basic training is complete.

Fraudulent enlistment is listed under Article 83 of the Uniform Code of Military Justice (UCMJ) and is punishable by dishonorable discharge and up to two years of confinement.

How is fraudulent enlistment detected? It depends on the deception. In cases where a military member lied about their physical condition and the deception is later uncovered through a physical exam or other means, it may be reported via military medicine channels. In cases where someone lied about a criminal record and requires a background investigation for a security clearance, the vetting process may reveal the fraudulent enlistment.

However it is uncovered, the punishment may vary depending on the nature, severity, and visibility of the issue. The process requires actions at varying levels of the chain of command up to and including your base or area commander, depending on circumstances.

How To Join The Military With A Criminal Record

We know from the discussion above that lying to enter military service is a very bad idea. But how does the military approve those with criminal records for a career in uniform?

The first step is to prevent surprises for your recruiter by being as honest as possible in the screening process.

The going advice is to disclose any contact with law enforcement, even if your records are sealed, expunged, or otherwise promised to you as being “unavailable” for review during a background check. It is not safe to leave out information about expunged or sealed criminal records in your interview or screening.

Documentation is critical in the waiver process. You should expect to gather as much supporting evidence as possible to show that you deserve a waiver. Some sources go as far as to advise you to try to get a letter of recommendation from a prosecutor or judge involved in your case. Such affirmations can lend a great deal of weight to your case.

Before you talk to a recruiter, gather as much of this information as possible, or prepare to do so. Don’t forget there may be a limited window of time you can submit the waiver request. If any of your sources are hard to reach, slow to reply, or need additional guidance, that will eat into valuable time that could be spent further refining your waiver request.