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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26161
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I have a Article 112A, UCMJ: wrongful use of a controlled substance and

Resolved Question:

I have a Article 112A, UCMJ: wrongful use of a controlled substance
and a Art 121, UCMJ: larceny of private property
on my criminal record
1) is there anyway to get this expunged
2) are these charges considered felonies

i was reduced to E3 and 14 days extra duty was my sentence
and these charges came about b/c positive UA
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

You can not "expunge" the charges...there is no law that would allow that (There is no federal expungement...that is state law alone...and what you describe sounds like you went to NJP - Art 15 so that is not something that is amenable to the expungement process regardless)

That said, there is an administrative process that you can use to "correct" a record that is in error. IF you could show that the Art 15 was flawed in some respect. Say, for example, you were clearly not guilty and the commander ignored your evidence and found you guilty, you can apply the army board of records correction and ask them to remove the record of the Art 15. This is not the same as an expungement...but it would remove the record.

But you have the burden to prove that the record is in error. And unless you have clear evidence to support the board will not modify the error.

The process is simple enough to apply...you file this form

http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd0149.pdf

With the Army Board of Corrections (address on the form)
Customer: replied 1 year ago.

but is this considered a felony or a misdemeanor charge

Expert:  P. Simmons replied 1 year ago.
Was this Art 15? or was it a court martial?
Customer: replied 1 year ago.

art 15

Expert:  P. Simmons replied 1 year ago.
Then it is NOT criminal...it is administrative in nature...so not a felony, not a misdemeanor.
Customer: replied 1 year ago.

but it is on my NCIC record? so if someone runs a back ground check on my then it shows up it is on my FBI record.....


how can an Administrative record be like that?


 

Expert:  P. Simmons replied 1 year ago.
yes...because you were investigated for a crime

But the record should show that there was no conviction. It should reflect what happened...you were suspected of criminal misconduct and that was resolved administratively.

If the NCIC record is accurate? YOu can not change it or expunge it...it will remain in the FBI database forever.

Now...if the NCIC record is not accurate (say it claims you were convicted at court martial)...then you can ask them to change it (the folks who reported it...CID at your base most likely). And if they refuse you can sue to change it.

But the record will not go away...if you were suspect, they can keep you in the NCIC.


Sorry to have to bear bad news.

Customer: replied 1 year ago.

no it shows that it was FG art 15 and that i was reduced to e3, extra duty for 14 days


but my question is???? is this considered a felony or misdemeanor in the civilian world???

Expert:  P. Simmons replied 1 year ago.
Neither. It is neither a felony or misdemeanor. Article 15 is administrative and not criminal. Now could they have charged you with a criminal offense. Sure, but they did not and because they did not do not have a criminal conviction.

So this record is neither a felony nor a misdemeanor.

If you are asking what would've most likely happened had you refuse article 15? Most likely you would have gone to a misdemeanor court-martial.
Customer: replied 1 year ago.

ok thanks i need to go but i have more questions i would like to ask you later


my email isXXX@XXXXXX.XXX if you could let me know when you are on this website i would appreciate it


 


i am just confused how a "administrative" record can show up on my criminal record IF i am not charged with anything????

Expert:  P. Simmons replied 1 year ago.
You can always ask here and put in the question "for psimmoms"

as for why this is in NCIC? Because they can. Really because they can input they do. Welcome to the surveillance state.
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26161
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and 3 other Military Law Specialists are ready to help you

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