A juvenile record can hinder a person’s ability to enlist in the military. To minimize the long-term negative repercussions of youthful indiscretions, the Texas Family Code allows for sealing of records once certain requirements are met. In Texas, once a juvenile record is sealed, the adjudication and proceedings are treated as if they never occurred. While Texas law does not require disclosure of sealed records on a military application, the military requires full disclosure and transparency. What follows is a roadmap that may help our clients preserve the military option.1
Texas Law
The general rule in Texas is that a child’s record is confidential and may not be shared or inspected unless specifically authorized by law. The Texas Family Code (TFC) defines a record as any documentation related to a juvenile matter, including information in that documentation.2
Unsealed Records
The military can access unsealed records as follows:
- Records of a juvenile court, clerk of court, juvenile probation department, or prosecuting attorney are open to inspection and copying by anyone with a legitimate interest—including the military—with permission of juvenile court.3
- The juvenile probation department may release information contained in its records, without leave of court—to the military or to anyone else—with a legitimate interest pursuant to guidelines adopted by the juvenile board.4
- The Texas Department of Public Safety (DPS) can share confidential information stored in its Juvenile Justice Information System (JJIS) with military personnel with permission of the juvenile.5
- The Texas Family Code does not give law enforcement the authority to release juvenile records to the military; however, law enforcement records relating to a juvenile may be inspected or copied by the juvenile, who can then provide them to the military recruiter or to anyone else.6
If criminal history is disclosed during the enlistment process, the juvenile may sign a release form giving the military access to unsealed confidential records. But there is nothing in the TFC that is designed to allow the military to force the juvenile to provide unsealed records to the recruiter.
Sealed Records
Once a juvenile’s record is sealed, the adjudication is vacated and proceedings are dismissed. The effect of sealing a juvenile record in Texas is that the arrest (taking into custody), adjudication, and proceedings are deemed not to have occurred.7 There is no provision under the TFC that permits the military access to sealed records, nor is there a provision that requires or forces a person to disclose or unseal their records and turn them over to the recruiter. If military personnel request records from DPS that have been sealed, they will receive notice that no records exist.8 If there is an inquiry by the military to any entity who received a sealing order, the entity must respond that records do not exist. While the juvenile court may allow, by order, inspection and release of sealed records to certain entities, the military is not listed as one of the entities.9
Given this, how is the military able to access sealed records? A person who is the subject of the sealed records may petition the court for inspection of his/her own sealed records, and upon a motion to the court, the court may order the release of any or all records to petitioner.10 The petitioner can then share the information with the military or with anyone else. There is nothing under the TFC that enables the military to force the person to unseal their records and turn these records over to the recruiter.
If the applicant discloses past criminal activity that has been sealed or the recruiter has reason to believe that the applicant is concealing criminal activity, the enlistment process comes to a halt, and the applicant will need to produce the records in order for the enlistment process to proceed.11
Sealing Process in a Nutshell
After certain requirements are met, records can be sealed without or with application.12 Records are considered sealed if they are not destroyed but stored in a manner that allows limited access to them. DPS stores the records in a way where the Texas Juvenile Justice Division (TJJD) can access them for statistical and recidivism studies.13 In Texas, information regarding a juvenile’s delinquent conduct is entered into the Juvenile Justice Information System (JJIS), a computerized database maintained by the Department of Public Safety (DPS).14 The information in the JJIS is confidential but may be accessed by certain entities identified by statute.15 The JJIS maintains information relating to delinquent conduct that, if committed by an adult, would constitute a criminal offense other than a fine only offense.16
These records include, but are not limited to, information relating to the juvenile, biographical data, marks, tattoos, fingerprints, referral history including level and degree of the alleged offense, adjudication and disposition of the case (including the name and description of programs that the juvenile was referred to), probation or commitment (to TJJD) of the juvenile, termination of supervision or discharge from commitment, and a description of each appellate proceeding.17 The JJIS is the point of entry into the FBI Interstate Identification Index (III), a database that stores criminal history information.18 The information in the JJIS is subject to sealing.
Within 61 days of receiving a sealing order, DPS will limit access to the records, destroy other records in its possession such as DNA records, and send written verification of the sealing to the issuing court.19 DPS de-identifies the data and moves it to a separate database just for TJJD’s research purposes. DPS will send an electronic message to the FBI to have the juvenile’s information removed from their criminal history database. DPS will follow up by sending the FBI a copy of the sealing order and perform periodic audits to double-check that everything was removed.20 Once the juvenile’s information is removed from the FBI database, any requests for records by the military will produce no results.
Note: Sealing statutes vary among states. Some states may allow inspection of juvenile records (sealed and unsealed) by military personnel or require disclosure of sealed information to the military.21 If the client has a criminal record in another state, it is important to know that state’s law with regards to the military’s access to those records.
Military Law
While there is no Texas law that obligates a juvenile to disclose sealed or unsealed records to the military, he/she is obligated under military law to answer questions truthfully and be fully transparent during the enlistment process. If the person makes false representations or deliberately conceals information on the enlistment application—which if known at the time might have resulted in rejection—and the person is inducted into the military, there can be consequences. The servicemember is subject to military law and can be prosecuted under Article 83 of the Uniform Code of Military Justice (UCMJ) for fraudulent enlistment. The UCMJ is federal law that governs the military justice system.22 It defines the military justice system and lists criminal offenses under military law.
Article 83 of the UCMJ states, inter alia, that
Any person who . . . procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances thereunder . . . shall be punished as a court-martial may direct.
An applicant commits the offense of fraudulent enlistment when he/she knowingly gives false information or deliberately conceals information, and the information would constitute either an absolute bar to enlistment or would constitute a bar to enlistment without a waiver and received pay or allowances or both.23 By having deliberately concealed disqualifying information such as a criminal offense or medical and mental-health issue, the servicemember risks being discharged from the military.24 Consequences depend on the circumstances and seriousness of the offense or issue—and on the individual’s quality of service up to that point. Every situation is different and will be treated accordingly.25 Military officials may choose not to take any disciplinary action for a fraudulent enlistment, or punishment can result in a simple reduction in rank, administrative separation from the military, or more serious consequences, including a dishonorable discharge, forfeiture of pay and allowances, and/or confinement for two years.
There is a five-year statute of limitations for a charge of fraudulent enlistment in violation of Article 83 of the Uniform Code. However, false representations and concealment of information on a military application can have repercussions past the five-year mark. They could raise character concerns that result in denial or revocation of a security clearance.
Waivers
A juvenile’s criminal record will not necessarily disqualify him/her from enlisting. The military can choose to waive certain offenses. Historically, the bulk of waivers approved involved a broad range of medical issues.26 A criminal history (moral) waiver involves an application process where the person is essentially asking the military to make an exception in his/her particular case and excuse a disqualifying offense.27 It can be a relatively quick process or it can be lengthy and take weeks or months depending on the circumstances. A waiver involves a thorough investigation of the incident, and each waiver is reviewed on its own merit.
If the recruiter believes the applicant is a good candidate, the recruiter can initiate the waiver process. Recruiters, however, do not have waiver approval/disapproval authority. Waivers are reviewed by officials higher up in the chain of command, exactly how high up depending on the offense and circumstances. Decisions regarding waivers are made based upon current law, regulations, and policy.28 Officials generally consider the “whole person” concept when deciding. They consider the “who, what, when, where, and why” of the offense in question, and the applicant has the burden to demonstrate that the waiver will benefit the military.29 There is no guarantee that certain offenses will qualify for a waiver; it depends on the nature of the offense and what positive attributes the candidate brings to the table. If the recruiter believes the applicant is someone worth considering, they may be willing to put forth the time and effort it takes to pursue a waiver on their behalf.
Adverse Adjudication
In determining whether a waiver is required, recruiters focus on the type of offense, the circumstances surrounding the offense, and whether there was any kind of “adverse adjudication” associated with the incident. Any action taken on a case where there is a conviction, finding, decision, sentence, judgement, or disposition other than unconditionally dropped, unconditionally dismissed, or acquitted is considered an adverse adjudication. Court-imposed orders to pay restitution, perform community service, or attend classes are examples of adverse adjudication.
Participation in a pretrial diversion program is processed as an adverse adjudication by the military and is essentially considered a plea of true.30 Military personnel are primarily interested in whether the person actually committed the offense and not on how the case was negotiated or disposed. Even if a charge is dismissed without any court action, it must be reported during the enlistment process. A suitability review team determines whether a waiver will be required. Some offenses can be waived, some are virtually always an automatic disqualifier, and some are very problematic. Examples of offenses that are currently considered automatic disqualifiers include:
- Intoxication or under the influence of alcohol or drugs at time of application.
- Adult felony convictions are currently considered automatic disqualifiers, but they can qualify for a waiver depending on the facts and circumstances.
- Juvenile felonies involving violence. Chapter V, Section 571.3(c)(2)(ii) of the Code of Federal Regulations defines juvenile offense as one committed by the applicant under the age of 18. Currently, the army will consider waivers for one juvenile felony (depends on severity).
- Offenses involving the sale or transfer of illegal drugs.
- Drug-related offenses involving controlled substances such as opiates and hallucinogens are very problematic.
- A sexually related offense, with rare exceptions, will disqualify a person from every branch of the military.31
- Domestic violence cases raise red flags, but officials will now consider the circumstances. A “conviction” for domestic violence that falls under the Lautenberg Amendment is problematic and can be an automatic disqualifier. Lautenberg prohibits a soldier from owning, possessing, or being issued firearms and ammunition.32
Each branch of the military has its own standards when determining whether a criminal offense is disqualifying and requires a waiver. The waiver process is very subjective. Applicants with a criminal record are low-priority candidates, so any additional attributes or qualities the applicant can offer the recruiter will increase the chances of the recruiter pursuing a waiver. Whether a recruiter is willing to pursue a waiver can also depend on the recruiting center and what the recruitment objectives are. The applicant will have a better chance at a center that has some flexibility in recruiting persons with a criminal history as opposed to a center that is focused on recruiting more highly qualified candidates.
Each waiver request is evaluated individually. No two cases are alike. The military is looking for the most qualified candidates and will likely be more hesitant to pursue a waiver for a recruit they consider a “borderline” candidate. Pursuing a waiver can be very time-consuming. The applicant does not have a right to have a waiver processed, and if the recruiter doesn’t think there is a good chance of getting a waiver approved, the recruiter is unlikely to submit one. The number of waivers issued in a year varies and can depend on the recruiting center, time of year, and how fast the Army is trying to grow. If a waiver is disapproved, there is no appeals process. But a waiver decision is only valid for the branch that made it. The applicant still has the option of applying to a different branch of the military.33
Military Enlistment Standards
Requirements and policies for enlisting can vary from year to year. As one recruiter put it, “recruitment is like a rollercoaster,” and is tied to the military’s need to either grow or downsize the ranks. In times of war, the military may lower its standards to meet military quotas. Knowledge of current military standards is helpful when considering whether to disclose or not disclose sealed information. On the one hand, having sealed the record reflects well on the applicant because it shows maturity, rehabilitation, and a desire to become a law-abiding citizen. On the other hand, under current military standards, the offense that was sealed, if disclosed, may permanently disqualify the person from enlisting.
Army officials maintain they are raising enlistment standards and focusing on the quality of its recruits instead of the number of recruits. While the Army is willing to waive certain issues such as past marijuana use and some limited mental-health issues, other things that may have been overlooked several years ago (such as a criminal history involving violence) are now considered deal-breakers. The Army is seeking more highly qualified individuals, referred to as Class A, or Alpha—applicants who score above 50 on the Armed Services Vocational Aptitude Battery (ASVAB)—and have a high school diploma and some college. Applicants who are considered Bravos are individuals who score between 31 and 50 on the exam. A score of 31 is considered passing.
The Army’s recruiting objective consists of a “volume mission” and a “quality mission.” The quality benchmarks mandated by the Pentagon require that at least 90% of enlistees have a high school diploma, 60% must score at least 50 on the ASVAB, and Category Four applicants—those who score in the lowest third on the ASVAB—are limited to no more than 4% of enlistees.34 The ASVAB is a timed multi-aptitude test that measures developed abilities and is a predictor of future academic and occupational success in the military. The test is designed to determine if the applicant has the mental ability to serve in the military.35 Pentagon studies have concluded that smarter people make better soldiers. If the Army fails to meet recruitment goals for the current fiscal year, it is likely because the Army is currently prioritizing quality over quantity.36
The Enlistment Process
The applicant should have a good understanding of recruitment policies and procedures when enlisting. The first thing the recruiter will do is pre-qualify the applicant. Some basic military qualifications include:
- must be a U.S. citizen or Permanent Resident Alien;
- must meet medical, moral, and physical requirements;
- must be between 17 and 34 years old;
- must have a high school diploma or equivalent;
- must achieve a minimum score on the ASVAB.
The Pentagon estimates that 71% of America’s population of 17- to 24-year-olds would fail to qualify for enlistment. Obesity remains the single biggest reason for failing to meet basic requirements. According to Major Gen. Allen Batschelet, Commander of the U.S. Army Recruiting Command, “Obesity is becoming a national security issue.”37
The recruiter will request certain documents, such as a birth certificate, social security card, and a high school diploma or GED certificate. The applicant may take a sample ASVAB. The sample mini-test is a good indicator of how the applicant will score on the actual test taken later in the process. The applicant will also be asked to sign a release for an FBI background check. Recruiters routinely run fingerprints through the FBI database and check sex offender registries. If the applicant has a juvenile record that has not been sealed, the FBI check will produce a rap sheet listing his/her criminal history. In addition to the requirements and procedures listed above, the applicant will be given a packet that includes a lengthy and detailed enlistment security questionnaire regarding family, associates, schooling, employment, finances, mental health, and medical and criminal history. The applicant will be asked to list all offenses for which he/she was arrested, charged, summoned, cited, or ticketed. If criminal history is disclosed or if the recruiter suspects that the person is being deceptive, the recruiter will request a release of records. Any disqualifying information that is disclosed or revealed must be fully investigated.38
Question: Yes or No. “Have you ever been told by anyone (judge, lawyer, any army personnel, family friends, etc.) that you do not have to list a charge because the charge(s) were dropped, dismissed, not filed, expunged, stricken from the record, or were juvenile related?”
If the applicant discloses a criminal record, or if it is discovered during the FBI background check, the application process will be put on hold. According to one recruiter, “closing the loop”— i.e., a complete investigation on disclosed disqualifying information—is required. Past delinquent conduct renders a person unqualified to serve, and unless it is an automatic disqualifier, the applicant can pursue a waiver.
Currently, the service appears to be taking a more openminded approach with regards to an applicant’s mental-health history. The Army will now evaluate mental health on a case-by-case basis. Army Secretary Mark Esper wants to make sure that experts are taking a more holistic approach when evaluating a waiver for what might otherwise bar a potential soldier from service.39 Mental-health issues and treatment will not be investigated unless disclosed.
There are certain medical conditions that can disqualify a person from enlisting. The military requires the applicant to list medical history and attach a written statement from a medical professional stating current medical/health status and whether or not the person is physically fit to serve. Medical conditions will generally not be investigated unless disclosed due to privacy rules.
Disqualifying information not disclosed during the initial enlistment process may be discovered at a later time if the person pursues a position requiring a security clearance. A security clearance involves a more thorough investigation of one’s background, including credit checks and field interviews with family, friends, associates, employers, co-workers, current spouse, former spouse(s), and in-laws.40
MEPS
Recruiters are not out on a witch hunt. Their mission is to recruit, and they want people to enlist. Unless criminal history or some other disqualifying information is disclosed either by self-admission or the FBI background check, the enlistment process advances to the next phase with a visit to the Military Entrance Processing Station (MEPS). MEPS is staffed with personnel from all military services who screen and process applicants via a battery of physical and psychological testing. The applicant will be given another opportunity to disclose disqualifying information. The applicant is warned that giving false information can result in prosecution and confinement and/or a fine. If the applicant discloses disqualifying information during the MEPS process, he/she is routed back to the recruiter for a full investigation.41
Once the applicant makes it through the MEPS process, the final two steps are signing an enlistment contract and taking the oath of enlistment. When signing the enlistment contract, the servicemember is put on notice once again that there are legal consequences for providing false information. The enlistment contract includes the following section:
13a. “My acceptance for enlistment is based on the information I have given in my application for enlistment. If any of that information is false or incorrect, this enlistment may be voided or terminated administratively by the Government, or I may be tried by Federal, civilian, or military court, and, if found guilty, may be punished.”
Preserving the Military Option
If the client is serious about pursuing a military career, here are some actions he/she should take to increase his/her chances of getting in:
- Seal records
- Get a high school diploma and preferably some college credit.
- Prepare for the ASVAB. A good score can significantly increase chances of getting a waiver. There are many online study guides and practice tests to help improve scores.
- Get fit. Military readiness can increase chances of pursuing a waiver.
- Avoid tattoos. Tattoos are allowed but there are rules.
- Test the waters. Each recruitment center has an objective with regards to the numbers of Alphas and less-qualified candidates with a criminal history it is willing to allow into its ranks.
- Weigh the pros and cons of disclosing sealed information while being mindful of the consequences.
Conclusion
A military career can make a positive difference in the lives of many of our clients. Whether patriotism is one’s motivation or simply seeking a steady paycheck, adventure, education, or self-esteem, we want to support their efforts. It is inevitable that the military option will come up when working with juveniles, and having a general understanding of recruitment policies and procedures will help provide meaningful guidance. Since becoming an all-volunteer force in 1973, recruitment standards have fluctuated, and although there are times when the military is more lenient with regards to its requirements, a criminal record remains a significant barrier to enlisting.
Advising our clients to seal their records is important, and having a general understanding of the sealing process can be helpful. The client should be aware of the military’s ability to access juvenile records—and the client’s obligation under both Texas law and military law to disclose that information. Our clients must carefully weigh the pros and cons of disclosing and not disclosing sealed information, and be very mindful of potential consequences under military law for not being fully transparent. The best advice we can provide our clients who are interested in joining the military is to prepare for the enlistment process, and take the extra steps needed to qualify for military service.
Endnotes
1. Thank you to Kaci Singer for assistance in navigating TFC Chapter 58 provisions.
2. Texas Family Code § 58.007.
3. Texas Family Code § 58.007(b).
4. Texas Family Code §§ 58.007 and 58.007(i).
5. Texas Family Code § 58.106(a).
6. Texas Family Code § 58.008(d).
7. Texas Family Code § 58.258(c).
8. Texas Family Code § 58.259(c).
9. Texas Family Code § 58.260.
10. Texas Family Code § 58.260.
11. Army recruiter, personal communication, December 12, 2017.
12. Texas Family Code §§ 58.255 and 58.256.
13. Texas Family Code § 58.259.
14. Texas Family Code §§ 58.105 and 58.108.
15. Texas Family Code § 58.106(a).
16. Texas Family Code § 58.104(a).
17. Texas Family Code §§ 58.104(a) and 58.104(b).
18. Texas Family Code § 58.102(a).
19. Texas Family Code TFC § 58.259(a)(1).
20. Kendall, A., at TDPS, personal communication, March 17, 2015.
21. Strus, Jennifer. “Comparison of Record Confidentiality and Sealing Provisions From 50 States” (September 28, 2011). See also “Restoration of Rights Project, Comparison Judicial Expungement, Sealing, and Set-Aside” (updated 2017).
22. Powers, Rod. “I Cannot Tell a Lie” (October 27, 2016).
23. 10 U.S.Code § 883—Art. 83. “Fraudulent Enlistment, Appointment, or Separation”; see U.S. v. Watson, 71 M.J 54 (2012); see also U.S. v. Holbrook, 66 M.J 31 (2008); U.S. v. Candice N. Cimball Sharpton (2013); 10 U.S. Code § 843—Art. 43. Statute of Limitations.
24. Smith, Stew. “Military Justice 101—Discharges” (November 9, 2016).
25. Army recruiter, personal communication, March 13, 2015.
26. Baldor, Lolita C. “Army Using Drug Waivers, Bonuses to Fill Ranks” (August 14, 2018).
27. Powers, Rod. “Military Criminal History Moral Waivers” (August 22, 2016).
28. Powers, Rod. “Army Criminal History Waivers” (February 15, 2017).
29. Powers, Rod. “Military Criminal History (Moral) Waivers” (August 22, 2016).
30. Powers, Rod. “Military Enlistment Standards” (February 15, 2017).
31. Powers, Rod. “Army Criminal History Waivers” (February 15, 2017).
32. 18 U.S.C. § 922(g)(9). See also Yu, Cpt Jake. “The Lautenberg Amendment and How It Affects the Servicemembers.”
33. Powers, Rod. “Military Criminal History (Moral) Waivers” (August 22, 2016).
34. Linehan, Adam. “The Recruiters: Searching for the Next Generation of Warfighters in a Divided America” (November 28, 2017).
35. Military.com, “Ace the ASVAB” (2018).
36. Adam Linehan, Senior Staff Writer, Task & Purpose, personal conversation, December 30, 2017.
37. Smith, Stew. “United States Military Enlistment Standards” (September 8, 2016). See also Blake Stilwell. “Here’s Why Most Americans Can’t Join the Military” (September 28, 2015). See also “Obesity Is Becoming a National Security Issue,” Lieutenant General Mark Hertling at TedxMidAtlantic (2012). Retrieved from https://www.youtube.com/watch?v=sWN13pKVp9s.
38. Army recruiter, personal conversation, March 13, 2015.
39. Myers, Meghann. “The Army is tightening waiver authority for recruits with issues like self-mutilation, misconduct, and substance abuse” (July 30, 2018).
40. Powers, Rod. “Security Clearance Military Secrets” (2016, October 18); Security Clearance Questionnaire (August 29,2017).
41. Military.com, “MEPS at a Glance” (©2018).
