As moral conduct waiver lawyers, the attorneys at National Security Law Firm are frequently asked whether a past criminal record will prevent someone from joining the Army. Often times, a criminal record can disqualify someone from being eligible to serve in the Army. In many cases, however, it is possible for Army recruits to obtain a moral conduct waiver, which allows them to overcome this disqualification. This article serves as a complete guide to the Army’s moral waiver process.
The Army provides its service members with opportunities to travel the world, define their careers, and achieve success in life. Like any other job or career, however, there are some basic requirements that must be met in order to join the Army. These requirements can range from the applicant’s physical fitness to their criminal backgrounds.
During the recruitment process, individuals who wish to join the Army will talk to a recruiter, attend Basic Combat Training (BCT), and choose their Army job. In general, there are six steps to becoming an Army Soldier:
- Pass a background check;
- Take the Armed Forces Vocational Aptitude Battery (ASVAB);
- Pass an Army medical exam;
- Meet with a recruiter;
- Take an Oath of Enlistment; and
- Attend Basic Combat Training.
To become an Army Officer, on the other hand, recruits will take the following steps:
- Take a standardized test (ACT or SAT);
- Pass an Army medical exam;
- Talk to an Army representative about your path/scholarship opportunities;
- Attend commissioning source;
- Graduate with a degree;
- Attend the Basic Officer Leader Course (BOLC)
- Join your unit.
Moral character standards for joining the Army are based on past illegal behavior. To judge the moral character of recruits, the Army has set a limit on the number of violations an applicant can have before being disqualified.
According to Department of Defense Instruction 1304.26, the Army is “responsible for the defense of the Nation and should not be viewed as a source of rehabilitation for those who have not subscribed to the legal and moral standards of society at large.” Thus, the underlying purpose of moral conduct standards in the Army is to minimize entrance of persons who are likely to become disciplinary cases, security risks, or who are likely to disrupt good order, morale, and discipline.
What Offenses Cannot Be Waived?
The following are not eligible for a waiver:
- Individuals who are currently under civil restraint (which would include probation, parole, and/or incarceration);
- Individuals who have been convicted in any court of a crime of domestic violence that falls under the Lautenberg Amendment (the 1996 Lautenberg Amendment to the Gun Control Act of 1968 makes it unlawful for anyone who has been convicted of a misdemeanor of domestic violence to possess firearms);
- Individuals convicted of rape, sexual abuse, sexual assault, incest, or any other sexual offense for which a felony charge is levied, or if they are required to register as a sex offender;
- Individuals found trafficking, selling, and/or distributing narcotics (which includes marijuana);
- Individuals who have more than one conviction for a “major misconduct offense” (i.e., a felony conviction);
- Individuals who have one conviction for a “major misconduct offense” (i.e., a felony conviction) and three or more convictions for other offenses (not counting traffic offenses);
- Individuals convicted of five or more misdemeanor offenses;
- Individuals with three or more convictions related to driving while intoxicated or impaired within the last five years; and/or
- Individuals that have previously separated from the Military Services under conditions other than honorable or for the good of the Military Service concerned.
What Offense(s) Will I Need a Waiver For?
In many cases, ineligible applicants will not be able to join the Army. However, in some situations, the Army will issue waivers in order to allow potential recruits to join, despite being otherwise ineligible. For example, in general, individuals who have felony convictions and/or several misdemeanor convictions are ineligible to join the Army. However, moral conduct waivers are available to interested recruits in some cases.
A moral conduct waiver will be required when a person has a “conviction” or “other adverse adjudication” for:
- One “major misconduct” offense;
- Two “misconduct” offenses; or
- A pattern of misconduct, which is evidence by either:
a. One “misconduct” offense and four “non-traffic” offenses.
b.Five or more “non-traffic” offenses.
Convictions or Other Adverse Adjudications. It is important to understand that moral waivers are required when the final finding of a court or other authority is a “conviction” or “other adverse adjudication,” such as fines, community service, imprisonment, probation, or parole, or when one has been ordered to deposit bail or collateral for a violation of any law, police regulation or ordinances, including traffic violations involving a fine or forfeiture of $100.00 or more.
This includes juvenile offenses, expunged or pardoned offenses, non-judicial punishments, and courts-martial proceedings. In addition, “convictions” include not only a plea of guilty, but also pleas of “nolo contendere” or “no contest.” Moreover, the term “other adverse adjudication” includes all offenses that resulted in admission into a pretrial diversionary or similar programs, deferred acceptance of guilty plea programs, or enrollment in other supervision programs.
Keep in mind that a waiver is only required for offenses where there was a conviction or other adverse determination. Thus, an arrest or questioning with no preferral of charges does not require a waiver. Similarly, when charges are dismissed without a determination of guilt, no waiver is required.
What If My Record Was Expunged, Vacated, Set Aside, or Sealed?
Some states have procedures for expungement or sealing of records, subsequent dismissal of charges, or pardon. Such action has the effect of extinguishing the conviction or adverse adjudication. Under state law, the applicant has no record of conviction or adverse action. Despite the legal effect of these procedures, waivers will nonetheless be required even for actions that have been expunged or pardoned and applicants are required to disclose the underlying offenses.
It is important to note that expungement is a state remedy that prevents background check companies from disclosing your expunged records to employers, etc. It does not apply to records kept by the federal government. Thus, even if your record was expunged pursuant to State law, there is a high chance that the FBI will still have a record of your offense.
Moreover, federal law requires disclosure of any past charges or arrests. Under 32 C.F.R. § 571.3(c)(2)(i), applicants to the military must disclose sealed and/or expunged criminal cases as well as juvenile records. If you are not honest at this stage, you may be committing a federal offense and your expunged record is likely to be seen.
That being said, having a conviction expunged, vacated, set aside and/or sealed increases the chances of receiving a waiver. While you still need to disclose a cleared conviction, having it cleared shows that the court has forgiven the offense or considers you rehabilitated.
How Will My Offense(s) Be Classified?
As can be seen above, the Army classifies offenses as either:
- “Major misconduct” offenses (these would be similar to felony convictions);
- “Misconduct” offenses (these would be similar to misdemeanor convictions);
- “Non-traffic” offenses (these would be similar to local ordinance or other small violations); and
- “Traffic” offenses.
There are various tables located in 32 C.F.R. § 66.7, “Enlistment Waivers,” that set forth examples of each of these categories of offenses. In order to classify your offense according to the Army’s classification, the following rules apply:
1. Initial Classification: Align the subject offense with an offense located on the Tables located at the end of 32 C.F.R. § 66.7. As an exception, any offense that is classified as a felony under the appropriate State/federal jurisdiction will be treated as a major misconduct offense, regardless of where the offense is listed on the Table.
2. Non-Similar Offenses. If you are unable to align the subject offense with an offense located on the above Table (i.e., there is no similar offense), the Army will:
a. Treat the offense as a “major misconduct” offense if the maximum sentence that could have been imposed was more than one year of incarceration;
b.Treat the offense as a “misconduct” offense if the maximum period of incarceration exceeds 6 months, but is less than one year;
c.Treat all other offenses as either “non-traffic” offenses or “traffic” offenses, depending on the nature of the offense.
How Do I Apply for an Army Waiver?
The rules and regulations relating to Army Moral Conduct Waivers are contained within Army Directive 2020-09 (Appointment and Enlistment Waivers). Applying for an Army waiver may seem as simple as requesting a form. However, it cannot be stressed enough that the point of the waiver is for the applicant to prove they can overcome the disqualification that prevents them from joining the Army.
Once the waiver has been submitted, a comprehensive review will take place and it will be determined whether the potential recruit can join. Waiver requests should include: a self-signed memorandum; supporting documentation (this would include the underlying police reports, court dispositions, article 15, letter of reprimand, etc., as well as honors, awards, reference letters, etc.); and, if applicable, a General Officer (“GO”) level endorsement and Moral Waiver Case Summary.
A GO level endorsement and Moral Waiver Case Summary are required when the recruit has a conviction for a “major misconduct” offense.
If you are unable to obtain supporting documents such as the police report or court records, then you must submit a detailed affidavit detailing the events and punishment. The affidavit should also detail your unsuccessful attempts at obtaining the required documentation, together with proof in writing from the courts/police departments/etc., confirming that the records no longer exist.
Letters of recommendation should be obtained from responsible community leaders, such as school officials, clergy, and law enforcement officials, attesting to your character or suitability for service. See 32 C.F.R. § 66.7, Enlistment Waivers.
Your waiver request should include detailed information regarding the underlying offenses that you are seeking a waiver for, including, the nature of the offense, the date of the offense, the location of the offense, and the punishment imposed. It should also discuss, in detail, any mitigating circumstances surrounding the offense, including your age, any lessons learned, as well as how you have contributed to your community following the incident and, perhaps most importantly, how you will be a positive asset to the Army.
How Are Waivers Decided?
The waiver process is very subjective. Waiver requests are approved individually and are based on the needs of the Army. Depending on the needs of the Army, moral waivers are either easier or harder to obtain. In the end, it comes down to the number of candidates needed and the number of candidates getting approved to join the military who do not require a waiver.
The Army will conduct a “whole person” review in order to determine whether granting a waiver is appropriate. This standard permits consideration of “the circumstances surrounding the criminal violations, the age of the person committing them, and personal interviews” with the applicant and others, as well as a recruit’s other aptitudes, experiences, and characteristics.
In processing waiver requests, the Army will require information about the “who, what, when, where, and why” or the offense in question. See 32 C.F.R. § 66.7, Enlistment Waivers. Applicants must provide sufficient details of mitigating circumstances that clearly justify approval of the waiver.
In determining whether to grant your waiver, the Army will also take into consideration how attractive of an applicant you are. Thus, those with better ASVAB scores and/or advanced degrees have a better chance of obtaining one than do those with lower scores or educational achievements.
Who Decides My Waiver Request?
Only an Army recruiter can initiate a moral waiver request. If the recruiter does not think that you would be a good candidate for a waiver, he or she does not have to submit one on your behalf. Thus, you do not have a “right” to have a moral waiver request processed, it is the recruiter’s decision to make the request, not yours.
For these reasons, finding a recruiter that is willing to work with you can sometimes be half of the battle. Although most people give up after being told “NO” by a recruiter, there have been many successful waivers passed because a recruiter was willing to work with a candidate who displayed maturity, respect, and persistence.
Once your recruiter agrees to process your waiver request, it will then be transferred to the appropriate approval authority. Recruiting battalion commanders are the approval authority for conduct waivers for applicants for enlistment or appointment to the Regular Army and the U.S. Army Reserve with non-traffic offenses and misconduct offenses (other than major misconduct). State adjutants general are the approval authority for conduct waivers for Army National Guard applicants for enlistment or appointment with non-traffic offenses and misconduct offenses (other than major misconduct).
More serious offenses, however, require a higher level of approval in the recruiting chain-of-command than less serious offenses. Thus, only the G-1 Director of Military Personnel Management (DPMP) may authorize a waiver for major misconduct offenses.
When Should My Waiver Be Submitted?
Since waivers take additional time to process, they must be submitted earlier than regular applications. Thus, your complete application packet, which includes your waiver request, must be submitted at least six weeks prior to the desired board’s deadline. In addition, if the recruit has a major misconduct offense, then the waiver request and application must be submitted no later than eight weeks prior to the desired board’s deadline.
Your recruiter will let you know the board’s deadline so you can adequately prepare.
How Long Does It Take To Process a Waiver?
Although actual turnaround time can vary in length, according to the U.S. Army Recruiting Command, it takes two to four weeks to process a moral conduct waiver request.
What If My Waiver Is Denied?
Unfortunately, waiver denials are the final decision and there is no right to appeal these determinations since the waiver process itself is considered an appeal of ineligibility. For this reason, it is very important to submit a comprehensive and persuasive waiver request. For the same reason, it is important that you do all that you can to clear, expunge, seal, or obtain a pardon in an effort to clear your record before you request a waiver.
If your waiver is denied, however, you can always apply with a different service branch. Different branches have different personnel needs and may approve of your waiver. In general, the Army has the reputation of approving the most moral waivers, while the Air Force and Coast Guard approve the fewest. The Navy and the Marines fall somewhere in the middle. However, this is not always the case.
Moral Conduct Waiver Lawyers – How We Can Help
Unfortunately, many people do not make it through the moral conduct waiver process. Of course, there are a variety of reasons for this, but in our experience, most of the disapproved applications were a result of the potential recruit handling their moral conduct waiver on their own, without the help of an experienced moral conduct waiver attorney.
We have reviewed many moral conduct waiver applications that were prepared without the advice of an attorney and, in general, we have found the following issues to be very common:
- Either not explaining enough regarding the details surrounding the underlying offenses or saying too much and including unnecessary information that hurts your chances;
- Not taking ownership for your role in the offense, either by blaming someone else or the court system in general;
- Not including enough documentary evidence or quality character reference letters; and/or
- Not providing the requisite documentation.
These are just some of the issues that we commonly see. Of course, as moral conduct waiver lawyers, we know what the Army wants to hear in these situations (as well as what they don’t want to hear) and we will work with the potential recruit to put together a detailed and persuasive waiver application, thereby drastically increasing your chances of obtaining a moral conduct waiver.
As moral conduct waiver lawyers, we not only serve as an objective party when it comes to evaluating and describing the underlying offense, but we are trained in the art of persuasion and we possess the legal background that is needed to draft a moral conduct waiver.
Moreover, as discussed above, under the “whole person” standard, the Army will take into consideration your aptitude. Submitting a concise, persuasive, well-written waiver request is yet another factor that the Army can take into consideration in granting your request. On the other hand, a waiver request that is full or grammatical and other errors can hurt your chances of success.
As discussed above, you only get one opportunity to argue your waiver request. If you are serious about joining the Army, you should seriously consider hiring an experienced moral conduct waiver lawyer to draft a waiver request on your behalf.
Nationwide Moral Conduct Waiver Lawyers
If you have questions regarding the Army’s moral conduct waiver process, contact the nationwide moral conduct waiver lawyers at National Security Law Firm today for a free consultation at (202) 600-4996.