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Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 21893
Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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My husband wants to join army reserve. He is 40yr, need an

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My husband wants to join army reserve. He is 40yr, need an age waiver. He needs also a moral waiver for domestic violence arrest in Jan 2014; the case was unconditional dismissed and police record met the criteria for destroy in 2017. However waiver was denied by the Army. Can we appeal?
JA: Are you overseas or stateside?
Customer: in Oceanside, CA
JA: Have you talked to a JAG attorney about this? Or anyone in the chain of command?
Customer: Not yet
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no

Hello,

Thank you for the information and your question. There is no appeal process or right for waiver denials in the military. The fact is that waivers are discretionary and are never required to be granted. Usually, during times like the current situation when the Services don't need as many new accessions, it is much less likely to obtain waivers. The fact that the Army Reserve seems to be arbitrarily denying your husband a waiver doesn't change the fact that they can do so legally. That said, he might be able to speak to the supervisor of his recruiter and double check to make sure that they had all of the correct information about the issue requiring the waiver. I can't second guess the information that the Army had when they made their decision or the decision itself, but ultimately they make the decision on enlistment/commissioning of each and every individual on a case by case basis with no appeal.

I am sorry the news is not more positive, but my duty is to be honest with you about the regulations and the law. If you need clarification, please ask. Otherwise, if you could take a moment to reply to this answer and let me know that I covered your question, then the Site will give me credit for assisting you today. Thank you

Marsha411JD and other Military Law Specialists are ready to help you
Customer: replied 24 days ago.
Sounds good! Could I have a lawyer write a statement saying that the case was unconditionally dismissed with no charge against my husband?
Customer: replied 24 days ago.
Liked “Hello,
Thank you for the information and your question. There is no appeal process or right for waiver denials in the military. The fact is that waivers are discretionary and are never required to be granted. Usually, during times like the current situation when the Services don't need as many new accessions, it is much less likely to obtain waivers. The fact that the Army Reserve seems to be arbitrarily denying your husband a waiver doesn't change the fact that they can do so legally. That said, he might be able to speak to the supervisor of his recruiter and double check to make sure that they had all of the correct information about the issue requiring the waiver. I can't second guess the information that the Army had when they made their decision or the decision itself, but ultimately they make the decision on enlistment/commissioning of each and every individual on a case by case basis with no appeal.
I am sorry the news is not more positive, but my duty is to be honest with you about the regulations and the law. If you need clarification, please ask. Otherwise, if you could take a moment to reply to this answer and let me know that I covered your question, then the Site will give me credit for assisting you today. Thank you”

Sorry it took me so long to reply to your follow up question, but I was out of my office for the day. Your husband should have a copy of the official court/case transcript that says that the case was dismissed and any other information that is on the record. That really is what the military wants, not a statement from his attorney. However, his attorney could send the court transcript along with their explanation to underscore the outcome.

Does that answer your follow question for you?

Customer: replied 23 days ago.
where to find an attorney for him? We have all the court/case transcript.

You can contact your County or State Bar Association and ask for an attorney who works with Military Law issues.

Customer: replied 23 days ago.
Got it. Thank you for helping!

You're very welcome.