How should I proceed?

[knoxjackson]

I am new to these forums, but I have had an issue arise recently that I need some guidance on. I recently applied to the Army and went through all my physicals and everything and then received my contract. I was due to go to basic on the 12th of April 2007. Well during my recruiting process they asked the question about have you ever been arrested. In 2001 when i was in another city going to college, i was arrested on the charges of passing worthless checks. Well I went through the lovely jail system and was released that day. The majority of my mail at the time went to my parents house, so i called them to ask if they had payed the bounced checks(2 of them) off, which they said they had. So we then called the companies in question and found that they had made a recording error since my parents had payed them under their name. I then took that to the DA on the day of my court date, he showed this to the judge and they expunged the charges and told me that this would not be on my record. Well I told this whole situation to my recruiter who told me that since i had not had a ruling against me by the judge then we did not have to put it on my application. Well a week ago, i got a call from the battallion commander asking me why i had not put that thing on my application, and I explained to him what i explained to my recruiter. Well we did some further checking into the situation and it was found that i had 2 bench warrants issued for failure to show to court. This was over 6 yrs ago and in 2004 I was pulled over for a failure to yield a stop sign, but the officer said nothing of any warrants then. That incident with the checks and that ticket are my only run ins with the law. So of course i have been on the phone for the past week with the court system and they have no info on anything about my whole case, except one sheet of paper that said failure to show to court. They didnt even have a copy of the case, or the checks. So they researched it and found that, someone had made a "terrible" mistake. So I have a paper from that court system stating that the warrants were erased due to their error and so on. Well in the meantime and I do mean within like 4 days the Army and the arrogant brass that run the recruiting battalion push my recruiter(who was aware that I was in contact with the Courts) into filing a DEPS form against me and they did last Friday. Now the whole basis of this DEPS form was the fact that I had "fradulently enlisted" due to this whole warrant screw up. Sorry to ramble but im sure the more detailed info i can give is helpful. I want to know now how i should approach this situation, I want nothing more than to go serve my country and I passed every test and physical which i was going in as a special forces recruit, which is not easy to get. I dont want any special treatment, just the same chance everyone else has going in! How should i approach this situation? Do I have a leg to stand on against the military? Should i hire a lawyer? Anything anyone could give me would be great help!

[knoxjackson]

Sorry my state is Tennessee

[SHORTY LONG]

knoxjackson, i would be irate as well. By chance, have you shown the paper
work from the Court where they admitted error to the Recruiter? Also the
Recruiter could take the Court information to his boss.

Moreover, there are a lot members here, and two in particular that, i hope
will further shed their expertise, and help. Col. Badapple40 and fozzy2.

[fozzy2]

Practically speaking, you are probably in a pretty bad spot. Your recruiter ought to get his posterior kicked, and he may well. But in the end it was your signature on the form, and apparently you didn't tell the truth. Quite simply, if the form asked "have you ever been arrested" then you should have answered yes. You were released the same day, and never convicted of anything. But that is not what the form asked, apparently. It said, "Have you ever been arrested?". You were. You should have said so, bad advice from the recruiter aside. This is one of those re-occuring examples of why people should read legal/official documents carefully before they sign them. You thought, with your recruiters urging, "but I was never convicted." The form didn't ask about convicted. It asked about "arrested."

We used to see this come up with people transferring from the fleet into SecGru. Usually young non-rates, their original enlistment paperwork at the time often only asked about "convictions". But when you start doing security clearance paperwork the forms will ask about "arrests" and even things like "ever been questioned". Sometimes people would kind of assume that since they didn't have to report it the first time, or because it was so "minor" or "several years back", they didn't have to report it. Often a big mistake.

Apparently the military is going to administratively process you for an entry-level separation. You don't really have a lot of strong legal rights in this situation. Having said that, you are lucky in a couple of respects. First, since you have not been inducted (taken pay, etc.) you can not be charged with the crime of fraudulent enlistment (10 USC 883, i.e. article 83). Second, sometimes the separation is "waiverable." The appropriate Army regulation is AR-635-200, chapter 7-17. You will probably want to contact the recruiting command in order to find out how you can provide input to the Battalion Commander (who probably has been delegated authority in these matters). You may get to write a letter, in which you will no doubt plead ignorance and lay the blame at the feet of your recruiter while extolling your potential as a soldier. Might work, might not.

If the Army does give you an ELS, you can then petition to have it changed. But, quite bluntly, it sounds as if you did what was alleged. Bad advice may be a mitigating factor, but it does not necessarily get you off the hook. If you can not get your ELS changed, then your only option might be to wait for some time, and then apply for a waiver for enlistment.

As for a lawyer, I doubt that there is a thing one could do for you (though a free consulation never hurts). You might ask to speak with the senior NCO for your recruiting battalion. Tell him you were just naively doing what you were told and that you really want to join the Army. S/He will decide whether or not to help make that happen, assuming your case is waiverable at all. My advice, try not to blame/badmouth anyone in the military. Take as much blame personally as you can stomach, emphasizing it was a misunderstanding of what was being asked, you meant no deception, etc. etc.

Good luck.

[knoxjackson]

is that on my initial questionnaire i put yes to all the things like questioned, arrested, and my recruiter told me to my face "did you ever have a ruling on you by the judge?" To which i said, "no" which was true. So he told me to my face "you dont have to put that on there because the case never saw the courtroom." This is so rediculous due to the fact they let DUI convictions and a lot of other poor charactered people into the Armed Forces and here I am someone who doesnt have to go and is doing it to honor his country. None of this would have happened due to the fact that the courts made a mistake do i have a case against them?

[DRTDEVL]

The actual question on the SF 86 starts with "Have you ever been arrested, charged cited, held, or convicted of any law violation (to include juvenile) by any law enforcement agency..."

No brainer here...

You also had to go into a security screening at MEPS due to the TS clearance your MOS required. This was your chance to open up.

The final chance was in your paperwork... The sheet of paper with the BN XO's phone number. It instructed you to call if your Recruiter told you not to say anything about medical or moral background questions.

AR 601-210, CH 4, Para. 4-13 b.:

b. A waiver may not be submitted until a 6 month waiting period has elapsed since applicant was separated or discharged from any component of the Armed Forces for any of the following reasons with the CG, USAREC, having approval authority:
(1) Concealment of an arrest conviction.
(2) Fraudulent enlistment.
...

Come back in 6 months and try again. Make sure the charge is listed next time...