Waivers are not automatic, and they are not necessarily the same for all branches of the service. Each branch of the service has its own policy. In processing a waiver request, the recruiter or other appropriate official considers the “who, what, when, where, and why of the offense in question (1993 DoD directive E1. 2. 7. 2. 2). The following, among others, are relevant: the type and severity of the offense or offenses, the circumstances surrounding them, number of offenses, how long ago an offense was committed. Isolated cases of minor misdemeanors ordinarily do not bar enlistment. But several misdemeanors may bar enlistment because they may show a pattern of criminal activity.

A 1997 interim DoD policy barred all branches of the service from enlisting people convicted of any misdemeanor crime of domestic violence. We were unable to find DoD’s current policy, but our research suggests that all branches of the service currently follow this policy (see for example, Navy Recruiting Manual 1130. 8F § 2C-1d at http: //usmilitary. about. com/library/pdf/navrecruit. pdf and Air Force policy at http: //www. afpc. randolph. af. mil/cfa/Staffing/[HiringGuid]Create?/AF Policy Lautenberg Act 20Feb04. doc ).

The law defines a “misdemeanor crime of domestic violence” as any crime that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon and is committed by (1) a current or former spouse, parent, or guardian of the victim; (2) person with whom the victim has a child; or (3) a person cohabiting with, or who has cohabited with, the victim as a spouse, parent, or guardian (18 USC § 921(a)(33)). To qualify as a conviction, the person must have been represented by counsel or knowingly waived this right. If he had the right to a jury trial, he must have been tried by one or knowingly and intelligently waived this right (18 USC § 921(a)(33)).

Under the law, a person cannot be considered to have been convicted of a domestic violence crime if (1) his record has been expunged or set aside or (2) he was [pardoned]Create? or had his [civil rights restored]Create?, unless the pardon, expungement, or restoration expressly provides that he cannot ship, transport, possess, or receive firearms (18 USC § 921(a)(33)).

To learn whether his misdemeanor record disqualifies him from serving in the army or reserves, your constituent should complete the application form at http: //www. usmilitary. com/scripts/recruit_signup. html and someone will contact him.

References:

• http://www.armystudyguide.com/content/army_board_study_guide_topics/military_justice/lautenberg-amendment.shtml

• If the available evidence (police reports, etc.,) show there is a good chance that you did, indeed commit the offense of domestic violence, regardless of whether or not you were convicted of the offense, there is a good chance that you might commit the same offense in the future (most studies have shown that those who abuse their spouse will do so in the future), and that would make you worthless to the Army, as you would not be allowed to carry weapons.

However, as part of your enlistment paperwork, you were required to sign documents in which you list all *arrests* and convictions. Failing to do so, could result in an involuntary discharge for "fraudulent enlistment" at a future time, if the Army finds out about it (see my article at: http://usmilitary.about.com/cs/joiningup/a/falsestatements.htm.

So, your recruiter doesn't think it's a big deal? Cool. Request that your recruiter put in writing, "I advised this applicant not to disclose a previous arrest (which didn't result in a conviction) for domestic violence on his enlistment documents because I personally believe it's not a 'big deal.'"

I'll bet almost anything that your recruiter will refuse to sign such a statement. Ask yourself "why?" The answer is because your recruiter knows that failure to disclose this information is a crime, and he/she would rather you "take the fall" for any such offense, if it's later discovered.

• Military enlistment waivers for felonies