BCD special court marial

[velocity]

ND
Is there any way other than a presidential pardon to get an article 112A (possesion of marijuana) conviction by a special court martial off of my record?
I have been working at a bank for over six months now and this just showed up in their background screening. I was in the middle of an analyst training program in addition to my regular job while in school. My manager and HR director said as soon as this comes off of my record I will be employed in the same capacity as before, until then it is in violation of FDIC regs.

 

[fozzy2]

This could be a very tricky question. There are several things you may want to check. First, *precisely* how are you in violation of FDIC regulations? Are you afoul of a rule against certain discharges ( i.e. "BCD" ) or against certain crimes ( possesion of illegal drugs )? If all you need is to upgrade your discharge then the Board of Corrections is the place to go, but I doubt this is the case. At any rate, for a very good guide (from the American Legion) on the whole corrections process (including "clemency"), see:
http://www.legion.org/pdf/dodguide.pdf

Your problems may be more complicated. If it is the fact that you were conviceted of a drug charge (and not just your type of discharge) that is upsetting the FDIC, then things get deep fast. Even if your record is "expunged" the FDIC may simply ignore the fact. The Coast Guard, for example, when issuing Maritime Licenses, often disregards expunctions, pardons, etc. ( on the basis that the 'underlying conviction' still exists, for example ). On the other hand, sometimes summary court-martial doesn't count as a "conviction" at all, for example if I understand correctly it won't trigger the "Lautenberg Amendment" (which concerns guns and domestic violence). It can be a very tricky area of the law. Thus, as a practical matter, there may be nothing that you can do.

Firstly, I would suggest you ask your boss/HR for the precise FDIC rule/policy that you are supposedly in violation of and get a copy of it. A lot will depend upon the precise wording. (if you are very lucky your employer might be mis-interpreting the rule). Then seek out a labor lawyer who is familiar with banking regs (your banks legal department can probably name several).

 

[badapple40]

You can't get it "off your record" in the sense that it will continue to come up in a NCIC check UNLESS it is overturned on appeal (and I take it your appeals process has been completed) or unless you have it pardoned.

You might get the discharge upgraded to an other than honorable, but the fact of the matter is that the conviction will still show up in NCIC.


My understanding of FDIC regs is that they prohibit felons and persons convicted of crimes of dishonesty from applying. Whether or not you are a felon depends upon when you were convicted, since convictions prior to the 2002 amendments of the MCM at special court-martials could not be punished with over 1 year of confinement and thus were not considered felonies. I may be wrong on the FDIC regs, I'd ask the bank about that.

 

[velocity]

I was convicted in 1997 so it was only punishable by six months and is not a felony. The HR director could not tell me why exactly this happened because the people in the preemployment screening could not tell her because of privacy issues, however I will be getting a letter from them in the mail expalining every thing.
I was originally under the impression that it was a "De minimis offense" becasue I meet all of the criteria;

(5) De minimis Offenses. Approval is automatically granted and an application will not be required where the covered offense is considered de minimis, because it meets all of the following criteria:
• There is only one conviction or program entry of record for a covered offense;

• The offense was punishable by imprisonment for a term of less than one year and/or a fine of less than $1000, and the individual did not serve time in jail;

• The conviction or program was entered at least five years prior to the date an application would otherwise be required; and

• The offense did not involve an insured depository institution or insured credit union.

Any way I will post again when I get the letter.

Thanks

 

[CeLaw]

2002 MCM amendments

Whether or not you are a felon depends upon when you were convicted, since convictions prior to the 2002 amendments of the MCM at special court-martials could not be punished with over 1 year of confinement and thus were not considered felonies.

BadApple, can you please explain this comment in further detail? I do not question whether or not you are right, but this is the first I have ever heard if such a thing. Thanks, CeLaw

PS> I have done a little research on these websites:

http://www.whitehouse.gov/news/releases/2002/04/20020412-4.html

http://www.fas.org/irp/offdocs/eo/eo-13262.htm

http://usmilitary.about.com/od/justicelawlegislation/f/felony.htm

 

[badapple40]

My bad: I used poor language choice. For it to be a felony, it must be punishable by 1 year or more. Congress amended 10 U.S.C. 819 (Article 19) in 2001, providing, in relevant part:

Special courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter [10 USCS §§ 801 et seq.] except death, dishonorable discharge, dismissal, confinement for more than one year, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than one year.

The President implemented these changes in the 2002 amendments to the MCM. As long as counsel and a military judge are detailed, there can be a punishment of a BCD and one year in confinement.

A felony, in most jurisdictions, is defined as one year or more. While the rules are right at the one year limit, court martials convened after 2002, in which counsel and a military judge were detailed, and that charge crimes punishable with at least one year confinement are considered felonies.