July 7, 2005
MILITARY SERVICE AND MISDEMEANOR CONVICTIONS
By: Veronica Rose, Principal Analyst
You asked if someone with a misdemeanor record may enlist in the U.S. Armed Forces.
Whether someone with a misdemeanor record may enlist in the U.S. Armed Services depends on several factors, including the nature, number, seriousness, and circumstances of the crime or crimes forming the record and when they were committed. The services may grant moral waivers to potential enlistees who have committed some categories of felonies and misdemeanors. But some crimes, unless expunged (for example, convictions for domestic violence), are a bar to enlistment.
CRIME AND ENLISTMENT
Federal law sets some of the criteria for enlisting in the armed services; the Department of Defense (DoD) sets others. Federal law bars people from enlisting if they have been convicted of any felony, unless granted a waiver by the secretary of defense (10 USC § 504). (In practice the secretary does not review all waiver requests but they are all subject to review according to DoD policy.) DoD requires enlistees to be of good moral character. The underlying purpose of the moral character enlistment standard, according to DoD, is to disqualify people likely to become disciplinary cases or security risks or disrupt good order, morale, and discipline (DoD directive 1304.26, Dec. 21, 1993). Under this standard, people cannot enlist if they (1) are under any form of judicial restraint (e.g., bond, probation, imprisonment, or parole) or have significant criminal records. DoD policy, like the federal law, allows waivers in meritorious cases.
Waivers are not automatic, and they are not necessarily the same for all branches of the service. Each branch of the service has its own policy. In processing a waiver request, the recruiter or other appropriate official considers the “who, what, when, where, and why of the offense in question (1993 DoD directive E126.96.36.199.2). The following, among others, are relevant: the type and severity of the offense or offenses, the circumstances surrounding them, number of offenses, how long ago an offense was committed. Isolated cases of minor misdemeanors ordinarily do not bar enlistment. But several misdemeanors may bar enlistment because they may show a pattern of criminal activity.
A 1997 interim DoD policy barred all branches of the service from enlisting people convicted of any misdemeanor crime of domestic violence. We were unable to find DoD's current policy, but our research suggests that all branches of the service currently follow this policy (see for example, Navy Recruiting Manual 1130.8F § 2C-1d at http://usmilitary.about.com/library/pdf/navrecruit.pdf and Air Force policy at http://www.afpc.randolph.af.mil/cfa/Staffing/HiringGuid/AF Policy Lautenberg Act 20Feb04.doc ).
The law defines a “misdemeanor crime of domestic violence” as any crime that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon and is committed by (1) a current or former spouse, parent, or guardian of the victim; (2) person with whom the victim has a child; or (3) a person cohabiting with, or who has cohabited with, the victim as a spouse, parent, or guardian (18 USC § 921(a)(33)). To qualify as a conviction, the person must have been represented by counsel or knowingly waived this right. If he had the right to a jury trial, he must have been tried by one or knowingly and intelligently waived this right (18 USC § 921(a)(33)).
Under the law, a person cannot be considered to have been convicted of a domestic violence crime if (1) his record has been expunged or set aside or (2) he was pardoned or had his civil rights restored, unless the pardon, expungement, or restoration expressly provides that he cannot ship, transport, possess, or receive firearms (18 USC § 921(a)(33)).
To learn whether his misdemeanor record disqualifies him from serving in the army or reserves, your constituent should complete the application form at http://www.usmilitary.com/scripts/recruit_signup.html and someone will contact him.
DOMESTIC VIOLENCE CRIMES AND THE LAUTENBERG AMENDMENT
The Lautenberg amendment, which amended the 1968 Gun Control Act, makes it a felony to sell or otherwise dispose of firearms or ammunition to anyone whom the seller knows or reasonably believes has been convicted of a misdemeanor crime of domestic violence (18 USC 922(d)(9)). It prohibits anyone convicted of such a crime from shipping or transporting in interstate or foreign commerce or possessing in or affecting commerce, any firearm or ammunition; or receiving any firearm or ammunition that has been shipped or transported in interstate or foreign commerce (18 USC §§ 922(d)(9) & (g)(9)). The law contains no exemption for armed forces' personnel, almost of whom carry firearms.
In response to this amendment, DoD adopted an interim policy for armed forces personnel. Among other things, it prohibited any branch of the service from enlisting anyone convicted of a crime of domestic violence. We have been unable to find its current policy for people applying for enlistment. But it generally prohibits assigning enlisted personnel with unexpunged domestic violence convictions to any position that includes duties covered by the Gun Control Act (i.e., carrying, possessing, shipping, or transporting firearms).