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Old 01-03-2019, 10:39 AM
 
11,396 posts, read 4,068,150 times
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Quote:
Originally Posted by dmarie123 View Post
The military doesn't answer to state law. For a security clearance, and for approval to join the military, you MUST disclose expunged records. If you do not, and you are caught, you will be facing fraudulent enlistment and a discharge from the military that could be other than honorable.

The military often sees expunged records because the charges/arrests/citation can be found in FEDERAL background checks (vs state or local) and are often in FBI databases. Additionally, there will be a security clearance investigator that will ask friends, employers, teachers, and family members if you've ever been in trouble with the law. Often, someone knows about the past issues, and spills the beans.

I understand state law, but these posters are asking about whether or not they have to disclose it to the military. They DO, or they face consequences.

Here is an actual case in which someone hid an expunged record, and was thereby denied a clearance, and tried to fight it on the grounds of legally being able to without the expunged offense. HE LOST after appealing his denied clearance and denied employment position. http://ogc.osd.mil/doha/industrial/04-12678.a1.pdf From the case,

"In filling out his security clearance application, Applicant answered “no” to Question 26.
This question asked if, in the previous seven years, Applicant had been arrested for, charged with,
or convicted of, any offense not otherwise reported on the application form. The question states that
Applicant was to answer the question even if the conviction had been sealed or otherwise stricken
from the record. "

"The Board does not agree with Applicant’s position. Expungement of an offense does not relieve Applicant of the responsibility to provide truthful answers... Applicant’s argument is further
weakened by the fact that the court which ordered the expungement was a state court. See ISCR
Case No. 03-22563 at 4 (App. Bd. Mar. 8, 2006)"

" (“[T]he federal government is not bound by state law concerning the expungement of state criminal convictions . . . [and] can require a person applying for a . . . security clearance to disclose information about his criminal record even if it has been expunged.”)"

I am speaking only to the question of if people can hid expunged records when joining the military. NO. Regardless of state law. NO. Regardless of legal advice. NO. Regardless of what a judge says. NO.
US Supreme Court or Appeals Court decision supporting this position? This is an arrest not a conviction.

Lots of government agencies do lots of things that will not in fact stand up when tested.

Again I believe all you amateur lawyers are attempting to provide good advice. But a lawyer who is expert in the area would be a better bet.
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Old 01-03-2019, 03:38 PM
 
8,820 posts, read 10,734,894 times
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The U.S. Government is authorized to ask for this information under Executive Orders 10450, 10865,
12333, and 12968; sections 3301, 3302, and 9101 of title 5, United States Code (U.S.C.); sections
2165 and 2201 of title 42, U.S.C.; chapter 23 of title 50, U.S.C.; and parts 2, 5, 731, 732, and 736
of title 5, Code of Federal Regulations (CFR)


The United Sates Supreme Court has refused to hear any case challenging the US Government's right to see sealed or expunged records. The US Appeal Courts have never rules against the US Government's right to access sealed or expunged records as a matter of federal law for military recruitment.

Now, lets reverse this, can you show me one state which tells you that expunging a criminal record will prevent the US Government from seeing it? Odds are they all have disclosures advising just the opposite.
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Old 01-03-2019, 03:52 PM
 
11,396 posts, read 4,068,150 times
Reputation: 4947
Quote:
Originally Posted by Rabrrita View Post
The U.S. Government is authorized to ask for this information under Executive Orders 10450, 10865,
12333, and 12968; sections 3301, 3302, and 9101 of title 5, United States Code (U.S.C.); sections
2165 and 2201 of title 42, U.S.C.; chapter 23 of title 50, U.S.C.; and parts 2, 5, 731, 732, and 736
of title 5, Code of Federal Regulations (CFR)


The United Sates Supreme Court has refused to hear any case challenging the US Government's right to see sealed or expunged records. The US Appeal Courts have never rules against the US Government's right to access sealed or expunged records as a matter of federal law for military recruitment.

Now, lets reverse this, can you show me one state which tells you that expunging a criminal record will prevent the US Government from seeing it? Odds are they all have disclosures advising just the opposite.
Here is a fine example of how good the feds are at defending these Executive order regulations.

https://www.latimes.com/local/lanow/...102-story.html

So let us see some appeal citations.
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Old 01-03-2019, 08:13 PM
 
Location: San Antonio
3,262 posts, read 9,414,253 times
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Ivmensch,
Can you please show us any evidence at all, from any official source, that you do NOT have to disclose expunged records for a Federal Security Clearance Investigation?
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Old 01-03-2019, 08:24 PM
 
11,396 posts, read 4,068,150 times
Reputation: 4947
Quote:
Originally Posted by dmarie123 View Post
Ivmensch,
Can you please show us any evidence at all, from any official source, that you do NOT have to disclose expunged records for a Federal Security Clearance Investigation?
Nope. My suggestion is and remains to discuss with a lawyer who deals with that area.

I just do not accept the views of amateur internet lawyers. Particularly on controversial matters.

See my prior post. All know there is no way to get off the no-fly list. And above that to get your legal bills paid.
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Old 01-03-2019, 08:42 PM
 
Location: San Antonio
3,262 posts, read 9,414,253 times
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Quote:
Originally Posted by lvmensch View Post
Nope. My suggestion is and remains to discuss with a lawyer who deals with that area.

I just do not accept the views of amateur internet lawyers. Particularly on controversial matters.

See my prior post. All know there is no way to get off the no-fly list. And above that to get your legal bills paid.
I'm not sure what area of law you practice, but I'm not an amateur lawyer. I'm a decently high ranking military recruiting official and I've personally witnessed the effects of people who listen to the lawyers about being able to say arrests didn't happen because they were expunged. Those lawyers aren't talking about Federal Security Clearances, they're talking about regular job applications at McDonalds.

I've had countless people in my office pleading with me over the last ten years that they thought they could say "no" because their record was expunged and a lawyer told them that. Their clearances were denied. Two of these cases that I can remember resulted in the applicant filing Congressional Complaints. I know because I had to provide written responses to Congressional Offices and the Office of the Inspector General. Neither case resulted in the applicant being allowed to join. Federal OPM forms clearly state on the form you must say yes even if it was expunged. These people chose to withhold information for a Federal Security Clearance investigation.


With regards to expunged, from www.hg.org, "However, because the FBI is a federal agency, it is not bound to follow an order issued by a state court."

"no matter how your criminal record disappeared, you must still list it on your SF-86. Unlike most traditional job applications, any state laws to the contrary are inapplicable under the constitutional principle of federalism (i.e. the states are prohibited from dictating how the federal government handles its own business)" From https://news.clearancejobs.com/2015/...records-sf-86/


This is from a lawyer practicing military law for 30 years "An expunged felony conviction doesn't disappear. It is still there lurking and is accessible to federal and state agencies and courts.
All expungement means is that you can state on job applications that you have never been convicted of a felony." Jospeh McFaul, https://www.avvo.com/attorneys/92614...ul-275489.html

There is a distinction between State Expungements and Federal Background Checks.


But, I'm sure you know best. I just hope no one you love withholds information on your advice, because they're in for a broken heart when they're denied a position and clearance, and try to find a lawyer to take their case.
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Old 01-03-2019, 09:20 PM
 
11,396 posts, read 4,068,150 times
Reputation: 4947
Quote:
Originally Posted by dmarie123 View Post
I'm not sure what area of law you practice, but I'm not an amateur lawyer. I'm a decently high ranking military recruiting official and I've personally witnessed the effects of people who listen to the lawyers about being able to say arrests didn't happen because they were expunged. Those lawyers aren't talking about Federal Security Clearances, they're talking about regular job applications at McDonalds.

I've had countless people in my office pleading with me over the last ten years that they thought they could say "no" because their record was expunged and a lawyer told them that. Their clearances were denied. Two of these cases that I can remember resulted in the applicant filing Congressional Complaints. I know because I had to provide written responses to Congressional Offices and the Office of the Inspector General. Neither case resulted in the applicant being allowed to join. Federal OPM forms clearly state on the form you must say yes even if it was expunged. These people chose to withhold information for a Federal Security Clearance investigation.


With regards to expunged, from www.hg.org, "However, because the FBI is a federal agency, it is not bound to follow an order issued by a state court."

"no matter how your criminal record disappeared, you must still list it on your SF-86. Unlike most traditional job applications, any state laws to the contrary are inapplicable under the constitutional principle of federalism (i.e. the states are prohibited from dictating how the federal government handles its own business)" From https://news.clearancejobs.com/2015/...records-sf-86/


This is from a lawyer practicing military law for 30 years "An expunged felony conviction doesn't disappear. It is still there lurking and is accessible to federal and state agencies and courts.
All expungement means is that you can state on job applications that you have never been convicted of a felony." Jospeh McFaul, https://www.avvo.com/attorneys/92614...ul-275489.html

There is a distinction between State Expungements and Federal Background Checks.


But, I'm sure you know best. I just hope no one you love withholds information on your advice, because they're in for a broken heart when they're denied a position and clearance, and try to find a lawyer to take their case.
You are of course the classic. Too close to the situation to have any accurate view. Classical. You do not understand that the DofJ lawyers involved in the case I cited knew beyond doubt that the lady could not get off the do-not-fly list anymore collect her legal fees?

I am sorry but you are a participant and your input is pretty much worthless.

You go with a knowledgeable lawyer. The only problem is if you run out of money.

And it may be you are correct and a knowledgeable lawyer will agree with you. But you are personally part of the problem not the solution. And if you are correct we need a law changing it. An expunged arrest or conviction should no longer exist for any purpose. It is a correction of a mistake. And the mistake correction should continue under any circumstance. Why on earth would you want to proceed on an incorrect record? That is flatly nuts.
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Old Yesterday, 06:46 PM
 
Location: San Antonio
3,262 posts, read 9,414,253 times
Reputation: 4937
Quote:
Originally Posted by lvmensch View Post
You are of course the classic. Too close to the situation to have any accurate view. Classical. You do not understand that the DofJ lawyers involved in the case I cited knew beyond doubt that the lady could not get off the do-not-fly list anymore collect her legal fees?

I am sorry but you are a participant and your input is pretty much worthless.

You go with a knowledgeable lawyer. The only problem is if you run out of money.

And it may be you are correct and a knowledgeable lawyer will agree with you. But you are personally part of the problem not the solution. And if you are correct we need a law changing it. An expunged arrest or conviction should no longer exist for any purpose. It is a correction of a mistake. And the mistake correction should continue under any circumstance. Why on earth would you want to proceed on an incorrect record? That is flatly nuts.
What problem am I apart of? Security Clearances are designed to investigate the character of person and decide if they are trustworthy with National Secrets that could gravely harm the USA. Actions that resulted in expunged records are still stamps of a persons character. They should still be evaluated when determining whether a person warrants a security clearance.

Expunged records aren't mistaken records. If someone steals a car, and the record is expunged, they still stole the car. The still made the decision to disregard the law and steal the car, and that should still be considered for a security clearance. If someone committed assault, and it is later expunged, it doesn't take away the fact that someone was still assaulted, it just allows the violent person to hide their crime. This should still be a factor in security clearance evaluations.

Expunged records are not corrections of mistakes... are you thinking of exonerations? An exoneration is not held against someone for a security clearance, because exonerations are corrections of a miscarraige of justice. Expungements are when someone is guilty, but a judge nicely lets them hide it for civilian and state employment.

Have you been talking about exonerations this whole time? Exonerations and Expungements are not the same thing.
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Old Yesterday, 08:57 PM
 
11,396 posts, read 4,068,150 times
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Quote:
Originally Posted by dmarie123 View Post
What problem am I apart of? Security Clearances are designed to investigate the character of person and decide if they are trustworthy with National Secrets that could gravely harm the USA. Actions that resulted in expunged records are still stamps of a persons character. They should still be evaluated when determining whether a person warrants a security clearance.

Expunged records aren't mistaken records. If someone steals a car, and the record is expunged, they still stole the car. The still made the decision to disregard the law and steal the car, and that should still be considered for a security clearance. If someone committed assault, and it is later expunged, it doesn't take away the fact that someone was still assaulted, it just allows the violent person to hide their crime. This should still be a factor in security clearance evaluations.

Expunged records are not corrections of mistakes... are you thinking of exonerations? An exoneration is not held against someone for a security clearance, because exonerations are corrections of a miscarraige of justice. Expungements are when someone is guilty, but a judge nicely lets them hide it for civilian and state employment.

Have you been talking about exonerations this whole time? Exonerations and Expungements are not the same thing.
You are simply a believer. Until the right case is litigated you may well be correct. But such a situation does not stick until they litigate a case where the outcome is obviously wrong and they win anyway. This may never happen as the Feds are smart enough to fold or otherwise settle any case where they are obviously wrong.

An order of factual innocence is a form of expungement. In CA it requires that all agencies involved seal the records for 3 years and then destroy them including all indexes in data bases etc.

Back in the days when I was a corporate executive we had a run in with a hotel where a couple of ranking managers were arrested under absurd circumstances. No charges were ever filed - the DA took one look and killed the thing. The executives were paid substantial sums by the hotel chain to end the matter and court action was taken that led to the destruction (not sealing) of all the involved records. This included all paper work and indexes to the smallest detail.

How do think the Feds would recover these records?

And the right thing is that the records should be destroyed in a wrong arrest and should legally no longer exist.
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Old Yesterday, 10:18 PM
 
Location: San Antonio
3,262 posts, read 9,414,253 times
Reputation: 4937
Quote:
Originally Posted by lvmensch View Post
You are simply a believer. Until the right case is litigated you may well be correct. But such a situation does not stick until they litigate a case where the outcome is obviously wrong and they win anyway. This may never happen as the Feds are smart enough to fold or otherwise settle any case where they are obviously wrong.

An order of factual innocence is a form of expungement. In CA it requires that all agencies involved seal the records for 3 years and then destroy them including all indexes in data bases etc.

Back in the days when I was a corporate executive we had a run in with a hotel where a couple of ranking managers were arrested under absurd circumstances. No charges were ever filed - the DA took one look and killed the thing. The executives were paid substantial sums by the hotel chain to end the matter and court action was taken that led to the destruction (not sealing) of all the involved records. This included all paper work and indexes to the smallest detail.

How do think the Feds would recover these records?

And the right thing is that the records should be destroyed in a wrong arrest and should legally no longer exist.
In this case, if a person where to be trying to join the military, and stated that they were never arrested, and it was found out, they could still be barred from joining for lying and stating that they hadn't been arrested. They must disclose it if they want a security clearance.

Might they get away with hiding it? Yes. They might. In this case, there were no charges, so there should have been very few if any records, and if they've really been destroyed, it actually might not come up in a background check of court records. Additionally, did you know that expunging your *court* records doesn't expunge your police records? They're two separate expungement processes, and many people fail to get their police records expunged. Some lesser crimes never make it into federal databases- shoplifting for example. Getting that expunged might actually keep us from finding the court records because it wasn't a big enough deal to be filed at a Federal Level, but the police records will almost certainly be there.

However, in your scenario, let's say that somehow we really don't find the records in the system. When a federal investigator comes to mom's house and asks if Johnny has ever been arrested, will mom say no? When they flash that shinny badge to Johnny's brother and ask if there was ever an arrest, will the brother say no? When they ask 3 co-workers if Johnny was ever arrested, will they say no? Then, they ask each coworker to give a name of someone else that knew Johnny, will those 3 new people all also deny that there was an arrest? They'll ask 3 friends (in addition to coworkers) if Johnny was ever arrested, and ask each of those friends to name additional friends. Clearances can take a year or more due to this web of questioning. If the arrest was that ridiculous, chances are Johnny has told family and friends about it, they were probably aware of the court battles and his victory. Unless Johnny kept the whole thing super secret, chances are someone in his inner circle is aware of it. I mean, you know about it, so surely other people do. Do you think EVERY person is going to look at a scary FBI-like federal investigator and they'll all say "Nope, Johnny has never been arrested!" Before they question you, they make you take an oath, and they threaten you with perjury charges... so if they asked you if you had any knowledge of Johnny ever having been arrested, would you say no? They DIG into your life. I'm not talking about a quick background check. Top Secret Clearances can take up to 2 years of them digging in your life, hard core.

Someone is going to spill the beans.

But, if the person is honest and says, "Yes, I was arrested. There were no charges. The case was so ridiculous that I got a settlement from the hotel that caused my arrest. Here are the settlement papers as proof" then the clearance investigator would go "Ok, thanks for being honest. Your honesty means you're trustworthy. I can see from these papers that you didn't actually commit a crime."

You can actually get a security clearance with a criminal record, by the way. You just can't get one when LYING about past involvement with law enforcement. Criminal records don't bar you from getting a clearance... dishonesty does. The military gives waivers all day long for people with arrests that are upfront an honest about it. It's the people who conceal it until we find it that get denied the waivers.


I think we've reached an impasse. We can agree to disagree. I'm going to retire from this thread. The original poster isn't being helped by this anymore. I wish you the best and look forward to future debates.
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