You May Have a Criminal Record and Not Even Know It: G-RAP / AR-RAP Records Expunction. Erasing Records and Criminal History

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1 You May Have a Criminal Record and Not Even Know It: G-RAP / AR-RAP Records Expunction Erasing Records and Criminal History G-RAP & AR-RAP investigations are based on the distorted political conclusion that Guard and Reserve Soldiers committed massive fraud in connection with the programs. This institutional bias has resulted in notoriously flawed CID investigations targeting Recruiting Assistants (RAs) and Recruiters. If you participated in G-RAP or AR-RAP you face the harsh reality that CID investigations may haunt you for years to come. Getting your G-RAP or AR-RAP records expunged or corrected will be an uphill battle, but it might be crucial to your military or civilian career. Who s at Risk? Many service members and veterans mistakenly believe if they re never prosecuted in the military or civilian court systems they won t have a criminal history. Unfortunately, this is not true. If Army CID Agents investigated your involvement with G-RAP or AR-RAP, you may have a record in the FBI s National Crime Records Center (NCIC) database - even if the CID investigation didn t result in criminal charges.1 In other words, you may have a federal criminal record even though you were never formally charged with a crime. Worse yet, this criminal record and all reports related to the CID investigation remain on file, even if you ve ended your service in the Guard or Reserve. Why does this matter? The Implications of CID Titling. 1 If the US Secret Service or another law enforcement agency conducted the G-RAP investigation, the process is different than described in this article. Consult with an Attorney to explore your options. 1

2 When a CID agent concludes that you broke the law in connection with G-RAP or AR-RAP, your name will be entered into a Report of Investigation (ROI) or Law Enforcement Report (LER). The report will also list the criminal laws the agent thinks you violated. This is called titling, and if it happens to you, then you re considered titled. 2 If the CID agent convinces a JAG Officer or Assistant United States Attorney that there is probable cause to believe you broke the law, then the ROI or LER is considered founded, and in many cases these founded reports are being sent to the FBI to create a federal criminal history in the NCIC database. You were never arrested at least in terms of how people normally view that word. You weren t handcuffed and you never saw the inside of a jail. You were never booked or processed in the traditional sense even though you may have provided your fingerprints and a photograph to CID in an effort to be cooperative. Yet, your federal criminal history will likely show you were arrested for a G-RAP related offense. CID labels for G-RAP & AR-RAP allegations investigations include wire fraud, theft of government funds, bribery, and aggravated identity theft. Figure 1 below is an example of an actual G-RAP RA s NCIC record showing an arrest. 3 The former RA in question has never been prosecuted in a military or civilian court and has never received a reprimand or any other administrative sanction from his commanders. Figure 1 NCIC showing an Arrest for G-RAP allegations. If you receive an Article 15 (or state military code equivalent), reprimand, or other administrative sanction because of the investigation, this action might also be entered into the NCIC database. Figure 2 below shows the NCIC record of another Soldier caught up in G-RAP. Note the entry showing the Soldier was convicted of Acts Affecting Personal Financial Interest. The NCIC entry shows the Soldier was charged with federal criminal statute Title 18 United States Code Section 208. Finally, this criminal history shows that the Soldier in question was separated from the AGR program and received a General Officer Letter of Reprimand. These are non-judicial 2 See my previous article CID Titling Means and Why You Should Care. 3 This NCIC Criminal History is from a RA who never wore an orange jump suit, was never handcuffed, and never spent a minute in a holding in a jail cell. 2

3 actions with an extremely low burden of proof and yet they still appear on a federal criminal history. 4 Figure 2 NCIC showing a conviction for G-RAP allegations. A NCIC record will show up on a background check. If left unaddressed, a NCIC record can follow you throughout your military career and interfere with your civilian life. A federal criminal record could prevent you from obtaining a loan, a professional license, or a security clearance. Depending on your NCIC record, you may have to say yes when a potential employer asks if you ve ever been arrested. Your attempts to explain to a potential civilian employer the complexities of G-RAP/AR-RAP and the flaws in the investigation might sound like excuses. If you answer no and the criminal history says otherwise, then you may look like you re lying to the potential employer. Worse yet, if you were never charged in court or sanctioned by the military, the criminal history may indicate that the allegation is unresolved and the investigation is still open. Depending on your situation, an unresolved allegation can be worse than a conviction. What can you do? Expunction is a legal process requiring the Government to erase all records and criminal history related to an offense. 5 Clearing your name is difficult, and since your case involves an Army investigation, the military bureaucracy makes it even more complicated. This article provides a simplified overview of the steps you can take to have your name removed from CID reports, and any resulting criminal history expunged by the federal government. 6 Step 1 Obtain Your Federal Criminal History. The official term for your federal criminal history (rap sheet) is an Identity History Summary. In law enforcement terminology, this is your NCIC record. You want to know specifically what information is contained in your NCIC criminal history. You may be able to obtain the NCIC / Identity History from different sources, depending on your situation. The standard procedure to obtain your NCIC / Identity History can be found at: 4 An Article 15 or State Military Code equivalent to an Article 15 can also appear on a NCIC criminal history. 5 The terms expunction and expungement are synonymous for the purposes of this article. The Department of Defense, Department of the Army, and US Army Regulations do not use either of these terms. 6 The process for state records and state criminal history reports will be different. 3

4 Read and carefully comply with the detailed instructions or the FBI will reject your request. CAUTION: The FBI requires that you submit your fingerprints to obtain your criminal history. If your fingerprints are not already on file within the criminal justice system, there may be a down-side to providing this information to the Government. You should speak with an attorney before taking this step. According to the FBI s web-page, the current processing time is weeks. Depending on the timeline in your G-RAP investigation, even if you ve been titled the FBI may not have received or processed the ROI; keep checking. Regardless of the outcome of Step 1, you will want to complete Step 2 below, and you can do this before you get the NCIC Criminal History results. Step 2 Request a copy of your CID files. You will need to learn and understand the specific allegations the CID agent made in the ROI or LER. The CID report may reflect gaps in evidence or flawed assumptions that can help later in a petition for expunction. Generally, you have a right under the Freedom of Information Act (FOIA) 7, and the Privacy Act, 8 to access the CID reports listing your name. The Government may attempt to rely on various legal exceptions as a basis for refusing your request. For example, under FOIA, if an investigation is still open, CID may avoid providing information. 9 For this reason, most attorneys seeking records on behalf of a client will make a request citing both laws. Army CID Crime Records Center provides online forms for both FOIA and Privacy Act requests. The Privacy Act request form can be accessed here: The FOIA request form can be accessed here: CAUTION: For multiple reasons, experienced attorneys avoid using the government s online request forms and instead draft specific demands citing both laws in one document. 7 5 U.S.C U.S.C. 552a 9 5 U.S.C. 552(b)(7) provides an exception to disclosure for active law enforcement investigations. However, this exemption only applies when releasing information can reasonably expected to harm an investigation. This is especially important in G-RAP & AR-RAP cases where investigations can languish for years. 4

5 If the Government fails to respond or denies your request, you may be able to appeal the decision. In some cases, you may have to file a lawsuit in federal court to force the release of information. Any appeal or court action will be limited to the content and quality of your initial request. Step 3 Petition CID to Un-Title. Before you can take any action in court to get an expunction of your records, you must first exhaust all administrative remedies. This means you must first petition the Commanding General of Army CID remove your name from the ROI or LER. In other words, you must request that CID Un-Title you. If you re unable to correct your record through CID, you may then petition the Army Board for the Correction of Military Records (ABCMR), this step is discussed further in the next section. Any request submitted to CID will be reviewed by Army JAG Officers. They ll make recommendations regarding the merits of your request. Because of this, you may want to retain a lawyer to draft and submit your petition. They ll know the strongest arguments, strategies, and legal doctrine to employ to maximize the chances of success. If you determine you want to try to appeal without the help of an attorney, Army CID Crime Records Center provides a form you can use for your request: cord.pdf If the Commanding General of Army CID grants your request, you have been officially Un- Titled. In other words, you have successfully removed the underlying basis for the NCIC record and can then petition the FBI to update the NCIC database accordingly. If your request is denied, you ll need to proceed to step 4 below. Step 4 Petition to the Army Board for the Correction of Military Records. The Army Board for the Correction of Records (ABCMR) is part of the Army Review Boards Agency. The Board exists to correct errors and remove injustices from military records. The Board routinely considers petitions to Un-Title individuals listed in CID reports. CAUTION: You must first attempt to correct your record through CID as described in Step 3, otherwise, your petition to ABCMR will be rejected. 10 Generally speaking, you must petition the ABCMR within three years of discovering the record in question. If the Commanding General Army of CID denies your request as described in Step 3, you can petition ABCMR to remove your name from the ROI or LER. You do this by submitting a 10 Since you were acting as a civilian when you participated in G-RAP or AR-RAP, in theory you could skip this step and attempt to get relief from a federal court. There are advantages and disadvantages to this course of action. Discuss with your attorney. 5

6 petition to the Board on a DD Form Based on your application, staff attorneys will prepare a statement of facts and recommendations for the Board. The Board in turn makes recommendations to a Deputy Assistant Secretary of the Army for the final decision. To learn more about ABCMR petitions go to: The website also provides a link to submit an online petition. Since staff attorneys shape the facts and make recommendations to the Board, many applicants hire an attorney to prepare the petition. Successful petitions normally articulate significant injustices and violations of substantive or procedural Due Process rights. Step 5 Federal Lawsuit. If all else fails you may be able to bring a lawsuit in federal court. In most cases, a federal court won t consider a lawsuit to expunge, seal, or revise federal records until you ve exhausted the administrative remedies discussed above. 12 Generally, all federal courts have the authority to expunge or seal federal criminal records when the court is convinced that an arrest or indictment was illegal or unconstitutional. 13 Likewise, a federal court may expunge or seal federal criminal records if it finds that probable cause was lacking or if there was misconduct on the part of law enforcement in obtaining the charges. Absent a Constitutional violation or clear misconduct on the part of law enforcement, the ability to expunge criminal records is more speculative. 14 For example, sloppy investigations based on flawed assumptions wouldn t necessarily be enough for a court to grant an expunction. More problematic, there is no uniform legal standard applied by all courts. Since the US Supreme Court has not considered this issue, the various appellate courts across the country apply different standards. In some cases, a federal lawsuit may also be brought under the Administrative Procedures Act (APA). Under the APA, a court must set aside an agency action, finding, or conclusion if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 15 Consult with your attorney to determine if you have a viable federal lawsuit. Conclusion The process for successfully expunging your criminal record is complex and arduous, involving a multitude of organizations, agencies, and law. The best way to arm yourself and ensure success is to consult a skilled attorney familiar with G-RAP and AR-RAP investigations. 11 Most attorneys will submit a formal legal brief with the DD At a minimum, an argument can be made that the ABCMR lacks jurisdiction to consider a G-RAP/AR-RAP appeal since RAs were a civilian contractors. 13 For example, See United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976). 14 For example, See Fernandez v. United States, 2009 U.S. Dist. LEXIS (E.D.N.Y. July 24, 2009) U.S.C. 706(2)(A) 6

7 Attorney Doug O Connell has successfully represented Soldiers and former Soldiers in G-RAP and AR-RAP criminal and civil cases, debarments, promotion review boards, reprimands and other actions. A former state and federal prosecutor, Doug is a Special Forces Colonel in the Texas Army National Guard. In addition to his own practice, Doug is Of Counsel to Fluet, Huber + Hoang law firm. 7