Help! My background check shows an arrest during my military service, but I was never convicted
This guide discusses criminal database entries used by DOD agencies like NCIS, CID, and AF OSI when a military member is accused of or investigated for a crime. Entry on this database is oftentimes permanent so it is important to ensure the final disposition of the case is accurately reflected.
IntroductionWhen applying for jobs, licenses, loans, firearms, or anything else that requires a background check, many former military members discover that an accusation, investigation, or arrest from their time in the military is still reflected in their background investigation despite the fact they never received a conviction or even went to a trial. The realization that an unsubstantiated allegation or minor misconduct (resulting in nothing more than an NJP/Article 15) remains on a criminal database can leave military members feeling frustrated and confused. Depending on the circumstances, corrections can be made to database entries so that they more accurately reflect the final outcome of the case.
Criminal Justice Information Services and TitlingThe Criminal Justice Information Service (CJIS) manages the criminal history record information for the Federal Government. It does this by operating a Next Generation Identification (NGI) database. The FBI NGI database is a national computerized system which stores, compares, and exchanges fingerprint data and criminal history information. Federal, state, and local law enforcement agencies submit fingerprint cards and criminal history information to feed this NGI database.
In 1987, the Department of Defense issued DOD Instruction 5505.11, requiring Defense Criminal Investigative Organizations (DCIOs) like NCIS, Army CID, and Air Force OSI to submit offender information to the FBI. This instruction has undergone several revisions since that time. In its current form, DODI 5505.11 requires DCIOs and all other DOD criminal investigative and police organizations to submit to the FBI criminal history data for all military members investigated for qualifying offenses listed within the instruction.
The submission of this criminal history information to CJIS is known as "titling." Once titled, an individual's criminal history is shared with criminal justice agencies nationwide through the FBI CJIS National Crime Information Center (NCIC). Regardless of the case outcome, the chances that an individual's information will be removed completely from the NCIC is almost zero. Instead, the titling in NCIC is simply amended with the information found in final disposition report. The final disposition report reflects the final outcome of the case. That outcome may range from no charges filed to a conviction and its associated punishment.
When titling goes wrongThe threshold for having a case titled in the system is incredibly low. Titling merely requires the investigation (not the charging or conviction) of a military member for a qualifying offense. The current list of qualifying offenses found within DODI 5505.11 includes most of the offenses found in the Uniform Code of Military Justice. For those who are ultimately never charged or convicted, or for those who receive only nonjudicial punishment for their titled misconduct, titling goes wrong when the agency responsible for the investigation fails to close the case with the final disposition report. Unfortunately for members of the military, the failure to file the final disposition report is an all too common occurrence.
In 2017, the Department of Defense Inspector General's Office published a report evaluating final disposition reports by military service law enforcement agencies. This report analyzed data reported by law enforcement agencies from each branch of service. Alarmingly, the DOD IG found that from 1 January 2015 to 31 December 2016, "of the 2,502 final disposition reports required to be submitted, 780 (31 percent) were not submitted." In some circumstances, such as those cases where there ultimately was a special or general court-martial conviction, failure by the agency to submit a final disposition report may inure to the benefit of the military member. In many cases however, especially those resulting in no charges or just nonjudicial punishment, Matthew T. Smith Law has seen servicemembers prejudiced by the government's failure to submit a final disposition report. In these cases, entities running background checks viewing only the qualifying offenses which were investigated. Without seeing final disposition report information reflecting that charges were dropped or that there was no conviction, these entities practice a "better safe than sorry" approach and treat the veteran as though there was a court-martial conviction for whatever alleged misconduct was investigated.
What to doIf an inaccurate or incomplete entry in NCIC is creating issues with your background check, contact an attorney familiar with the database process. While you will most likely remain "titled," attorneys familiar with these types of cases can work with you to obtain the necessary final disposition documents, submit them to the appropriate investigative agency authorities, and ensure that your NCIC entry accurately reflects that you were not charged or convicted of the underlying offenses.