Was i arrested and what does that mean?
Do i now have a criminal record?
can i have this sealed or expunged?
Military police, CID, AF OSI, CGIS, and NCIS "arrest" service members on a regular basis and enter information into federal databases. Most service members don't realize they were arrested.
Military law enforcement – both the military criminal investigative organizations (CID, AF OSI, CGIS, NCIS) and military police – arrest service members every day. However, unlike their civilian counterparts, most arrestees are simply returned to their command after they are “booked.” This is because in the military there is no bail system and no requirement for immediate charges and appearance before a court. The arrest occurs simply when the law enforcement believe they have probable cause that the service member has committed an offense. Probable cause is synonymous with reasonable grounds; in other words, law enforcement must believe that a crime was committed and have sufficient credible information that the service member committed it.
How do I know if I have been arrested?
The biggest indicator that you have been arrested is if law enforcement takes your fingerprints and photographs and often a DNA sample from your mouth. This is because the various databases that document the arrest and create a criminal history require the entry of photographs, fingerprints, and DNA. This normally occurs immediately after an interrogation. Sometimes military law enforcement will take the above in case they later decide they should arrest the member and don’t want to go through the hassle of bringing the member back in, especially where the member is not co-located with the law enforcement agent.
Does this mean I have a "criminal record"?
If you have been arrested by military law enforcement, you now have an arrest record that can be accessed by law enforcement across the county and other state and federal agencies. It will also pop during any security clearance investigation. The arrest data is generally entered into DCII (Defense Criminal Index of Investigations); NCIC (National Crime Information Center); III (Interstate Identification Index); CODIS (Combined DNA Index System); and NICS (National Instant Criminal Background Check System). NICS is primarily used to screen individuals for gun purchases. CODIS is a centralized database of DNA samples that law enforcement can use to search for suspects in unsolved crimes. III is a databse searchable by local, federal and state law enforcement regarding law enforcement contact. NCIC is a FBI database that tracks arrests through adjudication. DCII is the Department of Defense database that is accessible across the whole military.
If a member is arrested but never charged or found not guilty of the underlying offense for the arrest, that information should also be entered into DCII, NCIC, NICS, and III. Similarly, if the member is found guilty at NJP or court-martial, that information should be in the record.
Can I get the arrest expunged?
If your DNA was taken and you were never went to court-martial or were found not guilty at court-martial of all offenses, you are entitled to have your DNA removed from CODIS. Korody Law has handled dozens of DNA expungement cases. The member has the burden to show that he or she had a CODIS DNA sample taken and were never convicted at court-martial of the offense. Therefore, it is very important that the member keep all paperwork associated with the offense. We also get documents necessary for the DNA expungement using the Privacy Act disclosure requirements.
Expunging or sealing an arrest by military law enforcement is almost impossible as the member has the burden to show that there was not probable cause to believe an offense was committed and that the member (the arrestee) committed it. The requests are made directly to the law enforcement agency that made the arrest. In other words, the member has to show the law enforcement agency that they did not have probable cause. Probable cause is a relatively low standard of proof.
What about errors in my record?
It is very uncommon for military law enforcement to enter incorrect information in these databases. This includes inputting the wrong offense or the wrong disposition/outcome or just not updating the information with the outcome. For example, a member arrested for sexual contact (no penetration) may show in a databse that he or she was arrested for rape. Further, he or she may have been never charged with any offense but that information is not in the database and it just looks like an unresolved arrest.
These errors and omissions can be corrected through an amendment request. Korody Law has successfully amended military arrest records so that the member can do things like purchase a firearm.
Attorney Patrick Korody has close to 20 years experience practicing military law. He worked at NCIS headquarters during law school and spent 10 years on active duty in the Navy’s JAG Corps, where he was a specialist in Military Justice. Call Korody Law now for a free cas evaluation.