OF-306 and Question 9

I had an arrest for a 5th Degree Felony drug possession 5 and half years ago. Due to not testing for drugs via blood/hair, a first offense, and unlikely to offend again, I qualified for a pretrial diversion program where after one year of scheduled/random drug testing, private counseling and obeying all laws, the charges were dropped/dismissed and the records were sealed/expunged. I know I have to list this on an upcoming SF85P for Public Trust. However, I also have to fill out OF-306. For background information on this form is the following:
For questions 9,10, and 11, your answers should include convictions resulting from a plea of nolo contendere (no contest), but omit (1) traffic fines of $300 or less, (2) any violation of law committed before your 16th birthday, (3) any violation of law committed before your 18th birthday if finally decided in juvenile court or under a Youth Offender law, (4) any conviction set aside under the Federal Youth Corrections Act or similar state law, and (5) any conviction for which the record was expunged under Federal or state law . My question revolves around (5) - Do I not have to list the incident since it was dismissed/sealed by state law? This is very confusing as I know I have to list it on the SF85P even though it resulted in no conviction/no trial.
Thanks for your help on this one!!

Crilling - That’s a tricky one. It almost seems that you could omit because it was expunged. The only thing is, if this comes up during the investigation, which it probably will, you will have to provide answers at a later point, which will cause delays. My advice would be just to mention it, you did the work to make it right by attending counseling and submitting drug testing. I don’t think it would hurt you at all to inform them of this charge. If you don’t tell them, and it comes up, it will just cause delays with your clearance. Maybe one of the investigator members on this site will chime in as well. I would put it down anyway.

Hey man, if it is expunged or set aside already and you have documentation that says that. You are good. No need list that. Trust me.

Despite the contradictory advice from other posters, my recommendation is to disclose the offense and detail the final disposition. The question includes “any conviction for which the record was expunged under Federal or state law”. You agreed to pre-trial diversion which is a form of probation. It implies a certain level of guilt for the offense. Adjudicators look at likelihood of whether the conduct that led to the charge in question occurred, not results of plea deals and court negotiations that downgraded or drop the charge. If you are listing it on the SF-85P for a public trust position then why not list also list it on the OF-306 with the final disposition. It would show that you are honest and have put it behind you.

Thank you!! It is going to be on the SF-85P which is why I was confused.

Just out of curiosity - why would this form allow you to OMIT any change that has been expunged/sealed by federal or state when it’s obvious on the SF-85P you have to listed anything that has occurred in the last 7 years. It is very misleading…

Don’t waste your time pondering the methods of bureaucrats.

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I should’ve known that would be the answer!! Thanks!!

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Hello Crilling - I am stuck with similar issue. I am doing OF-306 form for BGV (new job offer). Do we have to mention Yes / No if the case was expunged ? Please help in clarifying it.