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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 18809
Experience:  Lawyer and current JAG officer.
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When I was 18 (22 now) I was detained by police in new

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When I was 18 (22 now) I was detained by police in new rochelle, New York for disorderly conduct: fighting and violent behavior. I don't remember much about the court proceedings however I believe the disorderly conduct charge was ACD'd after I did a day of community service. Been out of trouble since. I'm currently in the process of joining the Army Reserve. As far as job selection goes, I wanted to be an MP and if not I wanted to take a job that required a secret security clearance. My recruiter told me it was unlikely and I would be disqualified from those jobs because of this record. However, I'm aware that dis. Ord. conduct is a violation not a crime in the state of New York and thus I have no criminal record and in addition the record of the incident was sealed. I'm unsure of this gray area and I was seeking some clarification. Since technically I have no criminal record am I disqualified from these jobs? When I put this question to my recruiter he was very unsure and confused and it seems nobody in his office had an answer. Since it is equivalent to a traffic violation in NY and I was not convicted per say in a civilian court of any criminal offense am I barred from these MOSs or not?
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

Unfortunately, the technicality that you are pointing to here does not effect the manner in which the military considers the offense. New York is a state and can pass their own state's laws concerning how an incident is treated for their state. The military is controlled by federal law though. Federal law preempts state law, so when the military looks at offenses or records, they are not bound by what a state may classify a situation. Instead, the military takes the facts and makes a determination about whether or not the facts themselves (not what the state may specifically have charged) acts as a disqualification.

Regrettably, there is no real basis to appeal the determination of a recruiting station. You would have to go to different recruiters and, it is likely, you'll get different results from them based on their need. I think your argument certainly works and gives wiggle room to those recruiters that want it to, but there is no basis here to force a recruiter to open up MOS's when they have determined you are disqualified.

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