Expunging Records

I am often asked about expungement of military records created when a person is suspected of an offense, prosecuted; and convicted. What follows is general guidance. Each case is different, so feel free to give me a call at 703-298-9562 or send an eMail to mljucmj@court-martial.com for a consult.

Generally, there are two types of records generated.

1. A criminal record. A military suspect investigated by a military criminal investigation organization (MCIO) will be “Titled.” You are the “subject” of the investigation and thus your name is in the title of the record. At the end of an interview or interrogation as a suspect the MCIO will take fingerprints, photographs, and a DNA sample.
   1. Once titled that becomes a record of “arrest.” You will not be told this, but this is the effect. That record will then be transmitted by the MCIO records office to the FBI for inclusion in the NCIC. The National Crime Information Center (NCIC) is a computerized database of documented criminal justice information available to virtually every law enforcement agency nationwide, 24 hours a day, 365 days a year. The MCIO will then (or should) update that record as the case progresses. The DNA sample is processed separately for entry into CODIS (USACIL maintains military samples and records). This is a permanent record which can be searched by appropriate law enforcement agencies for a match when they are investigating other crimes.
   2. The titling record stays there for 40 years unless it is removed.
   3. You can appeal the records, but it is very difficult to have the record removed. The most common result is the record is corrected because it is inaccurate. For example, an Article 15 disposition sometimes gets recorded as a conviction, which it is not.
   4. You can appeal to have your DNA sample removed from CODIS under certain circumstances, following Service regulations. You can read more about CODIS here. Laboratories participating in the National DNA Index are required to expunge qualifying profiles from the National Index under the following circumstances:
      • For convicted offenders, if the participating laboratory receives a certified copy of a final court order documenting the conviction has been overturned; and
      • For arrestees, if the participating laboratory receives a certified copy of a final court order documenting the charge has been dismissed, resulted in an acquittal, or no charges have been brought within the applicable time period.
2. Case disposition. If your case is then processed under the UCMJ the record should reflect any action taken: case dismissed, conviction and sentence, reversed on appeal are some of the more common entries. This then is your criminal record which can be obtained by law enforcement, or other authorized users. For example, when applying for a security clearance or employment.

Military

There is NO expungement of military court-martial records, even if you are acquitted at trial. Here is a recent case of a person who sought to have his court-martial conviction expunged.

The United States Department of the Navy (Navy) dishonorably discharged Jerome Randolph, the pro se appellant, after a court-martial convicted him for sexual assault and falsifying a statement about that assault. After this discharge, Mr. Randolph repeatedly sought expungement of his court-martial conviction, as well as an award of back pay and an upgraded discharge status, before the Board for Correction of Naval Records (Board). The Board denied him any relief. He ultimately filed suit against the United States (government) in the United States Court of Federal Claims (Claims Court) seeking the same relief he sought from the Board, as well as claiming relief from defamation. The Claims Court concluded that, in light of his court-martial conviction, the Board reasonably refused to award him back pay and upgrade his discharge status. The Claims Court also held that it had no jurisdiction to expunge his court-martial conviction or to proceed with his defamation claim. Even after we broadly construe Mr. Randolph’s arguments on appeal, we affirm.

Randolph v. United States, No. 2017-1477 (Fed. Cir. 13 June 2017). Randolph is also a good reminder on the limited jurisdiction of federal courts to review and change a court-martial conviction.

There is NO expungement period, except corrections that might be available to your criminal record addressed above.

The one option is to seek a Pardon from the President of the United States. Note that the rules are quite strict.

Under the Department’s rules governing petitions for executive clemency, 28 C.F.R. §§ 1.1 et seq., an applicant must satisfy a minimum waiting period of five years before he becomes eligible to apply for a presidential pardon of his federal conviction. The waiting period, which is designed to afford the petitioner a reasonable period of time in which to demonstrate an ability to lead a responsible, productive and law-abiding life, begins on the date of the petitioner’s release from confinement. Alternatively, if the conviction resulted in a sentence that did not include any form of confinement, including community or home confinement, the waiting period begins on the date of sentencing. In addition, the petitioner should have fully satisfied the penalty imposed, including all probation, parole, or supervised release before applying for clemency. Moreover, the waiting period begins upon release from confinement for your most recent conviction, whether or not this is the offense for which pardon is sought. You may make a written request for a waiver of this requirement. However, waiver of any portion of the waiting period is rarely granted and then only in the most exceptional circumstances. In order to request a waiver, you must complete the pardon application form and submit it with a cover letter explaining why you believe the waiting period should be waived in your case.

Commonwealth of Virginia

Every state has their own statutes on the expungement of criminal records. Because I happen to be licensed in Virginia I’m more familiar with our rules.

With only a very few exceptions Virginia has no provision for the expungement of a final order of conviction of an adult, regardless of the nature of the convicted offense or the date of the court’s order of conviction.

If you have been charged with a crime, and (1) are acquitted; or (2) the charge is otherwise dismissed, you may file a petition with the circuit court requesting expungement of the police records and the court records relating to the charge. Likewise, if your identity has been stolen and the thief is arrested and convicted of a crime in your name, you may file such a petition. The Commonwealth’s Attorney must be made a party to the proceeding and the Court will conduct a hearing on the petition and consider all of the evidence presented and then may enter an order directing expungement.

Once the expungement is Ordered, the clerk of the court in which the expungement is granted shall forward a copy of the Order to the Virginia Department of State Police for appropriate dissemination and action. The records are sealed but they are not destroyed, and they may be opened and examined by law enforcement officers in connection with a criminal case and in connection with an application for employment with a law enforcement agency. An employer or an educational institution may not require you to disclose information concerning any arrest or criminal charge that has been expunged (except when applying for a federal security clearance).

If your conviction is overturned on appeal or through an absolute pardon issued by the Governor (discussed below), that conviction and its records may be expunged.

Juvenile Court records. An exception to the above information exists in connection with proceedings and records of conviction of juveniles in the Virginia Juvenile Court system.

Virginia provides for an automatic expungement of certain records pertaining to some (but not all) offenses which were the subject of proceedings against juveniles in the Juvenile courts. The clerk of the court is to destroy its files, papers, and records, including electronic records, connected with any proceeding concerning a juvenile in such court as to certain offenses alleged, provided the juvenile has attained certain ages (19 or 29, depending upon the offense of which the juvenile was found guilty) and certain time periods (again, depending upon the offense of which the juvenile was convicted) have elapsed.

Pardons. Upon application, the Governor may issue a pardon. The application process is lengthy, and as of this report some applications made by attorneys have been pending for over two years. One attorney recently told me that he has applications that have been pending for about two and a half years. The delay is likely caused by an insufficient number of personnel in the Governor’s office to review the applications and make recommendations to the Governor.

However, a simple pardon doesn’t clear the record of conviction. Only an absolute pardon does that, and those are based on actual innocence, not the passage of time. As the Governor’s website says, a simple pardon is just a statement of forgiveness. The person still has to answer “yes” when asked if he has been convicted.

Restoration of Civil Rights.Felons may apply to the Governor to have their civil rights (e.g., voting and jury duty) restored to them. Depending upon the nature of the restoration granted by the Governor, a felon may then petition a local Court for the restoration of his privileges to hunt and own and possess a firearm.