Unknown criminal charge brought up during interview

[Derbs]

Hello all.
I am hoping to get some insight into some information on the sf-86 and the follow up interview, specifically on the criminal offense portion.
In 2015, I received an article 15 (nonjudicial punishment reprimand) in the U.S. Air Force for possession of a controlled substance. I appealed against a general discharge and succeeded in getting an honorable discharge. However, during the time of the reprimanding process, I unknowingly was officially charged with possession of a controlled substance. Fast forward. During my filing of the sf-86 I put down that I had never been charged with a crime. I just recently had the interview and as I was unaware that I was charged with a crime, once again I stated had never been charged. The investigator presented a record contradicting just that. my response was that I was completely unaware of the record and I was under the assumption that everything that happened in the military was nonjudicial punishment where I was not officially charged by the government. I further noted that I did not intentionally lie as I honestly had no clue.
I am more so looking for some information on what may happen here forward.

Thanks

[amberbunny]

Were the drugs found during a search of the Dorm, your car, or some capacity where Security Forces or OSI placed you under apprehension (equivalent to civilian term arrest; military uses term differently)? Or was this due to failed urinalysis? I speculate it was physically found on your person or belongings. If you were apprehended, read your rights by SFI, OSI or on duty Security Forces…you were indeed formerly charged with possession.

Some background for those not familiar with military: Your commander, under advice from JAG, based on prevailing trends, decides Courts Martial or Article 15, non judicial punishment. When the Commander informed you (standing in your Class A’s, formally in their office) they decided Article 15…I believe you have 72 hours to meet with Legal office for defense. If you turn down Article 15 (Commander’s normally advised to ONLY offer Article 15 if they could make legal case in special Courts Martial). If you decline the Art 15, they should go to Judicial proceedings (Courts Martial).

Here is where I think you possibly believe “non judicially”…equates to no Judicial charges.

You likely were officially charged with possession. The punishment was handled non judicially. Regardless, the SF86 makes clear to speak to Article 15 or Captain’s Mast (Navy Term). Did you speak to this at all, or completely ignore?

Depending on your age, level of clearance, amount possessed, or used…4 years may be the beginning of time normally associated with mitigation. However, if they interpret your actions of not including as quibbling, hiding, concealing…you have another much bigger problem. A previous record of drug possession and not being truthful. That is a steep hill to climb. And another animal entirely. In short, you may be told you can reapply for clearance eligibility in 365 days. Or, if the god of clearances is smiling on you…they MAY believe you did not understand the question as written. Maybe. Doubtful, as the question is quite clear to mention Article 15’s.

[sbusquirrel]

I’m not a lawyer but I’m willing to play one (a JAG even) on clearancejobs… if you accepted the Article 15, wouldn’t that mean that they decided NOT to pursue filing charges? If instead you were charged, there would have had to have been an Article 32 hearing (where I think they determine if there is enough evidence to go to trial). I’d think you would have had to sign something… those are the trial proceedings that @amberbunny mentions… so the lack of any signed documents should show that this document charging you with possession (or whatever, they used to charge people with everything when they got busted for drugs) was NEVER ACTUALLY FILED.

Any other jailhouse lawyers care to chime in?

[amberbunny]

If he was apprehended for possession…that is a charge. How the punishment is handled, administratively or judicially is another matter. He can honestly say he was never convicted of possession, but I don’t think he can honestly claim to not being charged with possession. Apprehension is equivalent to the civilian term arrest. But in reverse the military term arrest implies something different. One is placed into an “arrest” status meaning confined to a barracks, dorm house or base. It is an interesting hair to split. But the 2008 SF86 clearly states Article 15 or Captain’s Mast. He CAN however argue he was discharged honorably as he fought for that…and that implies a far less serious administrative action.

[Derbs]

Thanks for the replies.

@amberbunny, @sbusquirrel. For some additional background info, there were 4 pills found during a random dorm search (Health and Wellness Inspection) which I did wrongfully posses and received from another airman. They were initially found by my detachment’s First Sergeant as he was the one tasked with the room inspections. OSI was then immediately notified and I was escorted, in handcuffs but was told that was just procedure and they took them off after I arrived at their office. Basically, everything you said in your first paragraph was correct. I was read my rights now that I think about it but initially waived my right to council as I planned on telling them the situation, which I did. As the investigator asked me, “how did you not know you were being arrested/charged?”; everything happened very fast and I was completely ignorant of the whole process. It didn’t seem like that was what was happening at the time, obviously no excuse. However, after everything was said and done, I honestly believed the only repercussions were nonjudicial, or what my understanding of that was – Article 15, Unfavorable Information File, reduction in rank, base restriction, 3 hours on 3 hours off duty for a week and ultimately my discharge from the Air Force - this was my response to the investigator.

Additionally, I had been completely transparent about the whole situation other than the fact of me not knowing about the official charge. I put down on the sf86 that I had received an Article 15, my reprimand, and explained what happened at length. I explained OSI was involved, I appealed an initial decision of another than honorable discharge, and all the events that took place leading up to my discharge. All of this was discussed before the investigator asked me in person about any charges or arrest, in which I said no.

Towards the end of the interview, he asked me if there was any additional information I would like to add or disclose. I asked it to be noted that I was honestly unaware of the official charges and record. I am hoping that my disclosure of all the events will be taken into consideration, as the charge was directly related to them.

[amberbunny]

Depending on your age…it might be believable, which isn’t to say it is truth or lie. Just plausible. However, I think it would be countered with:

A: You knowingly broke the law (UCMJ)
B: You were handcuffed
C: You were advised of your rights; Statement of Suspect has rights advisement on it and verbiage to the effect of “You are charged with…”
D: Are you saying you absolutely did not consult with Legal after the initial charge from the CC that you were going to get an Article 15?

Were you using at all? Any positive Urine tests? All of this builds the whole person concept. Frankly, it is hard to accept you did not understand you were formally charged with an offense under the UCMJ. If that is your entire claim…I predict no clearance for concealing the charges. The Air Force requires the highest ASVAB scores, comprehension etc. Not sure how long you were in or your age at the time but I am confident you knew better. And that makes it hard to accept you did not understand you had charges…the form does say “including Art 15 and Captain’s Mast.”

[AWoodhull]

People make mistakes. Whether this “mistake” was believable or not is moot. By disclosing this in the SF-86 and discussing the incident with the investigator prior being confronted with the information will probably save you because it does not show that the omission was intentional and willful. It is doubtful that you will be hit with a lack of candor since you came forth with the information.

So, don’t worry too much about this as I think you will be fine given the whole-person concept. In the future, do your homework beforehand. This is simply my opinion.

You can consult a security clearance attorney if it still bothers you.

[amberbunny]

I’m losing the bubble here. If this info was not on the form, but in the interview you fully disclosed the situation, all the details, etc…PRIOR to the investigator bringing anything up…the only issue of concern is if the Interviewer, and the adjudicator “believe” it is a plausible and honest mistake. So the issue of “believing” is key to the entire decision. If the version of the form his company uses (there are variances, mine uses the Jul 2008 form thankfully) clearly states the portion on including Article 15 and Captains’s Mast…I do not see how that is a possible mistake. He was well aware he had an Article 15. He did not report the Article 15. That is concealing it. This may have further implications if the characterization of discharge was first less than honorable and later upgraded…or was it successfully challenged prior to being given, and how he captured that in his answers there.

I don’t mean come across harsh…just realistic. I don’t see how a person can break regulations (military law), have drugs in their possession, get handcuffed, have a rights advisement…waive said rights…and credibly claim NOT knowing they were charged with a drug offense. All of this is moot had it been annotated on the form. Honest mistakes are easy to explain…this is stickier than giving a wrong address for a reference. I am curious if there was zero consultation with the base Legal office after the Commander informed him he was going to give him an Article 15. At that stage it would be brutally clear there charges preferred. But the easy question remains: does his form tell him to list Article 15s and Captain’s Mast? If so…he did not comply. That takes you immediately to the next question: is there a credible (believable…supportable) explanation? Right now my gut says no this is not believable.

[AWoodhull]

Amber, had the OP not listed it on the SF-86, then I will agree. However, the OP wrote that, " I put down on the sf86 that I had received an Article 15, my reprimand, and explained what happened at length. I explained OSI was involved, I appealed an initial decision of another than honorable discharge, and all the events that took place leading up to my discharge. All of this was discussed before the investigator asked me in person about any charges or arrest, in which I said no"

In my opinion, the OP provided more than enough information on the form and to the investigator as the OP did not appear to sugarcoat it. The issue here was the “arrest”, which I do not believe is material given the information he already provided on the form and to the investigator.

[EdFarmerIII]

I have outlined this in the past so I don’t want to go through the whole thing . . . My investigator confronted me with FOUR outstanding municipal arrest warrant that had been issued to me without my knowledge. I knew NOTHING about these warrants until the investigator brought them up. I got everything quickly resolved and they didn’t enter into any further discussions.

[amberbunny]

[quote=“Derbs, post:1, topic:7606”]
I put down that I had never been charged with a crime. Wood he wrote he had never been charged. He did not put the info on the SF86. Hence my response. Ed, this young man was apprehended, charged, cuffed, rights advisement…he KNEW all this. You did not know anything about municipal charges. This is possession of drugs. He specifically wrote on his OP he DID NOT put this on his SF86.

If I am incorrect, please show me. Again, I am not trying to be harsh, I am responding to the OP words. One simply cannot be caught in possession with drugs, be handcuffed, get a rights advisement, get informed of pending Article 15, not seek legal counsel or get crappy legal counsel and not remember being charged with this crime…He was charged. It was the punishment phase that was handled non judicially. But he was clearly charged with a violation of military law (UCMJ). If I am misreading any of this please let me know where my error is. Wood says the OP wrote this info on the SF 86. With 28 years Air Force experience, 6 years HQ Air Force SF, 8 years Major Command HQ SF…I am a tad familiar with their legal processes.

[needhelp]

my two cents… it sounds to me like selective amnesia, and hoping that the air force record didn’t count because it didn’t go into the civilian courts.

I was never handcuffed or sat in a jail cell, but I self-surrendered and went to a federal prison camp for 19 months where I could have walked off the premises, but it would have been a really bad idea on my part, added time to my sentence for escaping, and got me sent to the real prisons you see on TV.

I was incarcerated, trying to hide from it because I didn’t follow the traditional path of 95% of the people in the criminal justice system is not living in the reality of the situation. I understand to the majority of people a criminal charge, especially a felony is a scarlet letter, but even if your intentions aren’t malicious, people finding out the truth after they ask you, and you deny it - makes it way worse, because you are lying.

You had some drugs on you, you got popped for it, seems like you got off fairly well. cop to it and move on. sadly, you tried to bury it - again understandably so, but these forms are more for candor than a-ha gotcha moments.

You didn’t state your age, but I am assuming you are still fairly young into your adult hood. It’s the old adage ‘the cover up is worse than the crime’. Trust me, I completely get it, people stereotype you, snub their nose at you, think the worse of you - and as a minority, if you are one, it gets multiplied. Show you strength of character and push forward and own it, I can attest the system isn’t fair, reasonable, and things get over criminalized, but its purpose is to deter people from law breaking, not to be even handed. Your best bet is to do everything possible to stay out of it, so you don’t have to deal with the system.

law offender or not, everybody makes mistakes - just learn from them. If people weren’t so eager to critique others, they would realize they have mistakes in their lives as well, even the investigators and adjudicators aren’t perfect. Trust me, while every one loves a “squeaky clean person”, I personally would prefer to have someone that’s overcome something and has experience over them. You don’t see people’s true character until they are tested.

good luck.

[thor]

@Derbs

I unknowingly was officially charged with possession of a controlled substance.

I don’t think that is possible. The Air Force has to tell you everything during your article 15.

[Derbs]

Thanks for the responses.

All of the input is much appreciated. It gives me an idea how the situation may go, and it honestly looks like it could go either way. Regardless, with the information I have now, in retrospect it easy for me to analyze the events of my past transgressions and realize indeed I was charged, obviously.

To try and put it in my perspective @amberbunny - my true understanding of the situation was that I was not “officially” charged with possession of a controlled substance and the only significant repercussion was the Article 15 (and other additional reprimand already mentioned) and my eventual discharge from the Air Force, which I put down and explained the events. I was not “using” and have never abused drugs in the past or currently, possession of a controlled substance was not a thought in my mind when I received the pills. I took a urinalysis which was negative. I had already been prescribed some pills (not considered a controlled substance), finished them, buddy offered what he had as he was not taking them and the events transpired. Just to note, I disclosed all of this to the investigator prior to the criminal charge question.

You mentioned that you have some lengthy experience in the Air Force and with the legal process. I was 23 at the time, no legal experience, washed back in TACP training with only about five months in the Air Force not counting basic. My point being is that I was honestly naive to the situation. You are not misreading anything and a person with your experience would no doubt probably view the situation the same way. Moreover, my whole point of posting the question was to gain some insight into the possible outcomes and how someone (the adjudicator) could perceive my failure in checking a box that asked if I had ever committed a crime. I had no problem disclosing the information, I was just ignorant and unaware of my official charges. The responses here show me that someone may indeed interpret the incident in various ways and it is not so black and white, so that is good… In my opinion.

Also, going back over my sf86 form, this was my response to the UCMJ question:

**Provide a description of the Uniform Code of Military Justice (UCMJ) offense(s) for which you were charged: I was found in violation of Article 112a under the UCMJ. On or about [date removed], I wrongfully possessed a schedule II substance.

However, for the Police Records section I answered no to both of the following sections:

Police Record
Have any of the following happened? (If ‘Yes’ you will be asked to provide details for each offense that pertains to the actions that are identified below.)
• In the last seven (7) years have you been issued a summons, citation, or ticket to appear in court in a criminal proceeding against you? (Do not check if all the citations involved traffic infractions where the fine was less than $300 and did not include alcohol or drugs) • In the last seven (7) years have you been arrested by any police officer, sheriff, marshal or any other type of law enforcement official? • In the last seven (7) years have you been charged, convicted, or sentenced of a crime in any court? (Include all qualifying charges, convictions or sentences in any Federal, state, local, military, or non-U.S. court, even if previously listed on this form). • In the last seven (7) years have you been or are you currently on probation or parole? • Are you currently on trial or awaiting a trial on criminal charges?
Police Record (EVER)
Other than those offenses already listed, have you EVER had the following happen to you?
• Have you EVER been convicted in any court of the United States of a crime, sentenced to imprisonment for a term exceeding 1 year for that crime, and incarcerated as a result of that sentence for not less than 1 year? (Include all qualifying convictions in Federal, state, local, or military court, even if previously listed on this form) • Have you EVER been charged with any felony offense? (Include those under the Uniform Code of Military Justice and non-military/civilian felony offenses) • Have you EVER been convicted of an offense involving domestic violence or a crime of violence (such as battery or assault) against your child, dependent, cohabitant, spouse or legally recognized civil union/ domestic partner, former spouse or legally recognized civil union/domestic partner, or someone with whom you share a child in common? • Have you EVER been charged with an offense involving firearms or explosives? • Have you EVER been charged with an offense involving alcohol or drugs?

Thanks for all the input. It is out of my hands now, but I am prepared to appeal any unfavorable decision. I will update this discussion post to help out people in the future.

[AWoodhull]

some time ago, @dave019 provided us with a case that touched on this topic. I forgot what the case was, but I was unable to find the case and the thread. Nonetheless, I found three cases that, I believe, are pertain to the issue at hand:

http://ogc.osd.mil/doha/industrial/15-03727.h1.pdf. In this case, a proof of omission or incorrect fact is not enough to establish mens rea (knowledge of intent).

http://ogc.osd.mil/doha/industrial/15-01545.h1.pdf. In this case, the record must be reviewed as whole to determine the applicant’s state of mind at the time of application or omission.

http://ogc.osd.mil/doha/industrial/15-00040.h1.pdf. The Government bears the burden of proving falsification. A mere proof of an omission, alone, is insufficient.

My point is that… the fact that the applicant (OP) wrote the information in SF-86 and the applicant disclosed this information prior to being confronted with the information did not suggest mens rea to me. Moreover, the applicant provided affirmative defense to the omission. Unless the Government can produce evidence of intention that calls into the credibility of the affirmative defense, the credibility of the applicant’s affirmative defense is moot. So, it is not enough to say “I dont believe you” or “you should have known” or whatsoever.

Had the applicant failed to mention this on the form and/or to the investigator prior to being confronted with the information, I will agree with your argument. But this is not the case here.

@Derbs, assuming this is the only issue… I doubt you will get a Statement of Reasons (SOR) and a denial; however, if you do… get a security clearance attorney AND submit a Privacy Act request for a copy of your background investigation at the conclusion of the investigation. For this, you will need to call whoever conducted your background investigation to get the status and submit the request. Why? Because you will need likely need to review the Report of Investigation (ROI) and see what the investigator wrote… chances are that investigator may have made mistakes.

Even if you did not receive a SOR and you were favorably adjudicated, request a copy of your background investigation anyway.

[EdFarmerIII]

Since I was called out, while I didn’t directly support the OP’s situation, I have to point out that people are arrested and not charged every day. Being advised of his rights also doesn’t mean that he is being charged.

I’m sure that your 28 years of AF experience (Thank you!) gives you a great deal of insight into the process but expecting the experience of young recruit seems a little disingenuous.

As Mr. Woodhull has noted: Proof of omission does not equal proof of deception. That was really the point of my comparison.

[amberbunny]

Wasn’t trying to call you out Ed. Merely saying you being totally unaware of 4 charges is quite different from getting literally caught in flagrant delicto with narcotics, non legal, 4 each, getting handcuffed, read your rights, transported in a law enforcement sedan, deciding to confess and cop to the possession “charge” having an opportunity to seek legal counsel, receive the NJP Article 15…and then omit the reporting of said Art 15…to my original point, “believability” is absolutely key to this process and is in no way a moot point. I have no idea if they will believe or not believe his reason for not truthfully reporting an Article 15 when it specifically calls for it. But if they don’t believe his claim…he does not get cleared for eligibility. He does not pass Go, he does not collect $200. I CAN buy the argument he thought non judicial handling of the “charges” meant it was different. I do not buy the claim he did not understand he wasn’t charged. When the sentences start with "You have been “Charged with” a violation of article XXX of the UCMJ…it is pretty straightforward. He MAY get some benefit of doubt if he is 17 years of age, fresh out of high school and off the farm…But we should all agree if the form says list Article 15’s and Captain’s Mast and you do not do that…Houston, we have a problem. Not an unsolvable or unresolvable problem, but we have a problem. Also, when a BI person asks “Is there anything else we may need know, or you forgot to include…” or words to that effect…I think that is a pretty big clue to “I found something, are you sure you don’t want to speak to it.” Your mileage may vary.

[EdFarmerIII]

Here’s my real problem . . . I think that he should have receive OTH discharge if he was charged with possession. That likely would have cleared this whole thing up. I can, however, see a 20 year old airman not understanding that he was actually charged when his only punishment was an honorable discharge from the service.

[amberbunny]

There are a lot of angles here. And I tend to agree the discharge characterization should have leaned towards “other than honorable.” Hence why I asked if he fought after the classification or prior to the classification. That too makes a difference. At times the services make it easier to give one over the other and there may be other failure to adapt reasons going on, and they simply allowed him to go back to mom. From my experience in this exact scenario…it is simply not credible he didn’t get legal counsel and understand he was charged. There would have to be so many marbles lining up, incompetent commander, incompetent JAG, incompetent Legal office, incompetent OSI, incompetent first Sgt, incompetent Security Forces…for him to not know he was formally charged. Willing to bet he spent time on Weeds and Seeds patrol for a time until this all came together to boot. Health, Morale, and Welfare inspections are different than a standard search with authority to search and seize. That causes a lot of heartburn for legalese folks. Had he lived in base housing, they require a search authorization from a commander having control over the house. A search warrant is not required for barracks (now called dorms) as each commander is charged with maintaining the health, morale and welfare of the occupants. Trust me when I say nobody’s morale is upheld in these types of searches. Normally the barracks/Dorm is surrounded by Security Forces, the exits and entrances are controlled, all angles of the building are under observation or recorded to document any attempt to ditch items out of windows. The military members are ordered out of their rooms and K9’s are run through and the most private areas of a room are searched: underwear drawers, hampers, mattresses, etc. They SHOULD use females for female rooms (prior to the multitude of claimed genders notwithstanding) and males for male rooms. But this isn’t always the case and I’ve seen a good bust blown by a male spending too much time in a lingerie drawer. Human nature. No warrant is required. They are very intrusive. And they are done periodically to send a message or disrupt a known current drug issue. Not speaking to the article 15 made this young man’s hill a steep climb. With an honorable discharge, DoD rarely if ever “reads a person out” and he likely could have crossed over without a new SF86. But failing to answer a question honestly…is his to defend in a plausible manner and that is my only point. Not listing an address or some administrivia…not a big deal. Failing to mention something that caused you to be removed from the Air Force? Big deal, and something many would be tempted to lie about. That part is understandable, but damaging to his claim. I think it comes down to quibbling in a non credible manner, and it is indicative of why the Air Force returned him.

[amberbunny]

Derbs, as I see it you have a two pronged issue here: Omitted info, and Drug possession, Schedule II drugs. Those are VERY serious drugs. The attempt at downplaying it is also noted. You CAN make an argument you did not understand…but your follow up post makes your climb more difficult. I would not recommend justifying omission, just own it, say you misinterpreted it. Otherwise it appears as “quibbling” (splitting hairs on a technicality). Bluntly speak to doing something not acceptable resulting in discharge. This is far bigger than a simple case of “omission,” and the technicality thereof. You have a drug possession charge. Likely this comes under misuse of a prescription, which is a serious concern. I will go out on a limb, guess it is flexeril (muscle relaxer) or similar, possibly a stimulant like ritalin or adderal. Even if it was military Motrin (It wasn’t as that is not a Sched II drug), it is STILL an issue, even though they give it for menstrual cramps to major surgery or amputation…it is 800MG doses vice civilian 200MG. Possessing another person’s prescription Motrin (as an example of a lower class drug). This medication caused at least 2 submissions to be slowed substantially. An Omission, plus drug issue, plus release from active duty before end of service committment, plus previous letter of Reprimand…will cause whole person concerns (were you ever written up at work). They may want at least 12 months between you and the possession (even with clean urine). Not listing an item because one misinterpreted or forgot is easy to justify if the item in question is low threat…however drug issues takes it to a different level. Whole person concept kicks in, benefit of doubt gets narrow. You may have spoken the dates but I lost it in the back and forth. How long ago did you leave the AF, that may give you 12 months removed from drug issue, however, you are at at the far end of discretion…meaning age 23 is legally an adult and then some. Age 24 it just about closes the window on “I forgot or did not know.” I am very familiar with TACP’s; the training is nothing short of brutal. I understand desire to share Flexeril and the like. But, duly noted It is a Schedule II…controlled substance. By definition: Schedule II . substances, or chemicals are defined as drugs with high potential for abuse, with use potentially leading to severe psychological or physical dependence. This includes: morphine, opium, and codeine. Examples of Schedule IIN stimulants include: amphetamine (Dexedrine, Adderall ), methamphetamine (Desoxyn), and methylphenidate (Ritalin). Other Schedule II substances include: amobarbital, glutethimide, and pentobarbital. This is not a harmless pain pill. It is highly controlled, and you played it down in your follow up post. Again, this speaks to believability. . And that again amps up the scrutiny regarding omission.