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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.
And the facts say the guy was not arrested so agreeing that he was is a lie. You look up the meaning if expunging? And treat this as the limit case...finding of factually innocent. That finding by the way is virtually guaranteed if the prosecutor does not file the case.
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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.
Nope. A CA expungement of the factually innocent sort requires the police agencies involved to seal and then destroy all records including indexes in data bases.
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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.
If the security folk resort to collecting garbage rumors that is their right. One hopes they correctly sort them.
And just as an aside one of the people in the hotel incident had a very high level security clearance. One of the reasons why we pursued it hard and made it go away. He was senior enough it was not a problem but it was a concern.
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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.
Again nonsense. The people who run those kind of operations are not open minded friendlies. They jump on stuff and take easy way outs. And practically it will prove to not be appeal-able.
Again a proper lawyer with experience and knowledge. And do what he says.
And I agree we are at an impasse. But you again are too close and have no distance providing a rational view.
Nope. A CA expungement of the factually innocent sort requires the police agencies involved to seal and then destroy all records including indexes in data bases.
and on that note it shows you really have no idea what you're talking about as CA PC Title 8 clearly states numerous times and places that Experiments and Seals have no impact of the federal government's ability to see the records. In the CA Courts guide to Engagements of criminal records, it also states you are to disclose the criminal charge and outcome for federal purposes unless it instructs you otherwise. So, this is starting to sound more like an academic exercise by someone caught lying to the military desperately seeking redemption.
and on that note it shows you really have no idea what you're talking about as CA PC Title 8 clearly states numerous times and places that Experiments and Seals have no impact of the federal government's ability to see the records. In the CA Courts guide to Engagements of criminal records, it also states you are to disclose the criminal charge and outcome for federal purposes unless it instructs you otherwise. So, this is starting to sound more like an academic exercise by someone caught lying to the military desperately seeking redemption.
In simple terms what happens after a finding of factual innocents...
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If I win the Petition for Factual Innocence, what happens then?
Wonderful things. The judge will order all the police agencies to seal their arrest records and the police reports, so nobody can see them without a court order. The California Dept. Of Justice and everyone to whom they gave copies of your arrest records have to seal their records. The Court clerk must seal the Court's own files and the order adjudging you factual innocent itself has to be sealed, along with even the D.A.'s files on your case. Then, three years after the date of your arrest, they all have to physically destroy all those records, including all public indexing to them, and including deleting all the data from the law enforcement computers. There will be no physical records left of your arrest, your prosecution or any court proceedings.
***************************************** https://www.avvo.com/legal-guides/ug...-arrest-record
Now kindly explain how the Feds or anyone recreates those destroyed records.
5 USC 9101(a)(2) says, "The term “criminal history record information†means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correction supervision, and release. The term does not include identification information such as fingerprint records to the extent that such information does not indicate involvement of the individual in the criminal justice system. The term includes those records of a State or locality sealed pursuant to law if such records are accessible by State and local criminal justice agencies for the purpose of conducting background checks." This means that the US Government does not have a right to see expunged records if they are completely inaccessible even to courts and law enforcement. However, this does NOT mean that one can lie about the expunged records.
Last edited by wadeo100; 04-29-2021 at 12:49 AM..
Reason: I had not finished one of the sentences I was typing.
5 USC 9101(a)(2) says, "The term “criminal history record information†means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correction supervision, and release. The term does not include identification information such as fingerprint records to the extent that such information does not indicate involvement of the individual in the criminal justice system. The term includes those records of a State or locality sealed pursuant to law if such records are accessible by State and local criminal justice agencies for the purpose of conducting background checks." This means that the US Government does not have a right to see expunged records if they are completely inaccessible even to courts and law enforcement. However, this does NOT mean that one can lie about the expunged records.
You are 100% incorrect. The government is allowed to access expunged arrest records, and they will. Expunged records will also appear on background checks involving work with children, the elderly, etc. Prosecutors and judges (as well as others) also have access to expunged records. Expungement keeps the info out of the hands of your landlord and most employers, but there are still plenty of folks who can access expunged records. An expunged record will show up on a military background check.
In simple terms what happens after a finding of factual innocents...
*****************************************
If I win the Petition for Factual Innocence, what happens then?
Wonderful things. The judge will order all the police agencies to seal their arrest records and the police reports, so nobody can see them without a court order. The California Dept. Of Justice and everyone to whom they gave copies of your arrest records have to seal their records. The Court clerk must seal the Court's own files and the order adjudging you factual innocent itself has to be sealed, along with even the D.A.'s files on your case. Then, three years after the date of your arrest, they all have to physically destroy all those records, including all public indexing to them, and including deleting all the data from the law enforcement computers. There will be no physical records left of your arrest, your prosecution or any court proceedings.
***************************************** https://www.avvo.com/legal-guides/ug...-arrest-record
Now kindly explain how the Feds or anyone recreates those destroyed records.
Factual Innocence and Expungement are NOT the same thing.
All you have to do it google "Expungement level 2 background check" and you will see that expunged records absolutely come back in level 2 background checks. Now repeat the experiment with the "sealed records" and you'll see they come back in level 2 background checks.
You are 100% incorrect. The government is allowed to access expunged arrest records, and they will. Expunged records will also appear on background checks involving work with children, the elderly, etc. Prosecutors and judges (as well as others) also have access to expunged records. Expungement keeps the info out of the hands of your landlord and most employers, but there are still plenty of folks who can access expunged records. An expunged record will show up on a military background check.
That may be true in the state where you live, but in the state where I am from, courts and law enforcement cannot access expunged juvenile records. They can access expunged adult records, though. Besides, Federal law says that military officials have the right to access expunged records IF they are still accessible to criminal justice agencies (read: courts and law enforcement). I have even quoted a provision of Federal law in my previous reply. You might consider reading my posts before you reply to them. Also, I have stated before that the original poster should not lie, even if the records are inaccessible to the military. I will not argue with you on this one any further.
That may be true in the state where you live, but in the state where I am from, courts and law enforcement cannot access expunged juvenile records. They can access expunged adult records, though. Besides, Federal law says that military officials have the right to access expunged records IF they are still accessible to criminal justice agencies (read: courts and law enforcement). I have even quoted a provision of Federal law in my previous reply. You might consider reading my posts before you reply to them. Also, I have stated before that the original poster should not lie, even if the records are inaccessible to the military. I will not argue with you on this one any further.
Don't try to hide it, even if it is expunged. Tell your recruiter, and explain all the circumstances. If you are able to get an expungement, it will probably help matters.
If the situation can be verified to be as you have explained it here, you may be able to get a waiver, if needed, to enlist.
If you have no other problems, and you are a desirable candidate in all other respects, your application for a waiver will likely be granted. The only hang up might be that the Coast Guard is more selective than the other branches of the service. If they were to turn you down, you should try the other services. The Air Force is a little picky too, so I would try Army, Marines, and Navy if I were you, and I got turned down for the Coast Guard. It's probably not a good idea to get turned down by two service branches, and then go knocking on the door of a third.
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