An issue I frequently come across when advising clients in a Michigan criminal case who are considering pleas is whether they can join the Army either in lieu of probation, or after their punishment is concluded. Although most people would assume that the United States Armed Forces would be happy to accept new recruits who want a second chance, the fact remains that entry into the Army after a criminal case can be an extremely difficult experience.
The enlistment requirements for the Army stem from Army Regulation 601-210, Active and Reserve Components Enlistment Program, and specifically Chapter 4, entitled Waivable and Nonwaivable Enlistment Criteria Per this chapter the Army separates criminal offenses into those which are considered ‘non-traffic offenses,’ ‘misconduct offenses,’ and ‘major misconduct offenses.’ Per Rule 4-2(e)(1)(a)(2), an Army applicant needs a waiver in the event that they have:
- Two or more ‘misconduct offenses’
- A combination of four or more ‘non-traffic’ and ‘misconduct offenses’
- One ‘major misconduct’ offense
Additionally, per 4-7(a), an applicant can only have one major misconduct offense, and requires a waiver, as well as a two year wait from the date of conviction prior to enrollment. Per Rule 4-4(b)(1), any felony is considered a major misconduct offense. Per Rule 4-4(a), charges stemming from the same incident are considered separate charges. Finally, per Rule 4-12, the Army is very clear that cases which charges are dismissed per deferral programs like the Holmes Youthful Trainee Act in Michigan are still considered convictions for purposes of the Army.
Regarding the differences between ‘non-traffic’ and ‘misconduct offenses,’ figures 4-2 and 4-3 list a variety of charges which delineate between the two. For example, charges such as conspiring to commit a misdemeanor, vandalism, malicious mischief, and disorderly person are considered ‘non-traffic offenses,’ while charges such as larceny less than $500.00 would be considered ‘misconduct offenses.’
Waivers themselves require the Army to approve the candidate, which is no guarantee that they will be approved. My understanding is that at this time, waivers are extremely difficult to obtain. Because of this, my advice to clients generally consists of a strategy where any pled offense or offenses have to be of such a nature that they do not invoke the requirement of obtaining a waiver.
Of major concern is that 601-210 specifically contemplates courts attempting to modify and dismiss charges to allow for a defendant to enter the army. Because of this, the regulations prohibit this and the wrong move by the court may actually prevent one from entry into the Army when they may have otherwise been eligible. Along with this thought are sentences which are terminated upon entry into the Army. The regulations also frown on this activity and this type of legal strategy may also end up hurting the potential Army candidate.
I have found that in situations where a client wants to join the Army, the courts and prosecutors are generally encouraged and willing to help with this. When this happens, a plea deal can potentially be struck where the client pleads to a charge which will not require a waiver. The ultimate goal in this situation is to have a plea where upon successful completion of the sentence, the client is able to apply for the Army without first being required to obtain a waiver.
Jim Amberg is a partner at the lawfirm of Amberg & Amberg, PLLC. Jim has tried and won misdemeanor, felony, and federal jury trials and routinely handles everything from Major Narcotics Conspiracy to Murder cases. He argued and won the legally significant case of United States v Presley in the 6th Circuit Court of Appeals. Jim also has sued courts to stop the practice of illegally incarcerating minors. Jim is an active member of the Criminal Defense Attorneys of Michigan, the Michigan Association for Justice, and the National Association of Criminal Defense Lawyers. He has been named a Superlawyer by Superlawyer Magazine, a Top Lawyer by DBusiness Magazine, AV Rated by Martindale-Hubbell, and has a rating of Superb by AVVO.com.
If you have any legal questions regarding your case, please feel free to contact Jim at (248) 681-6255 or email at firstname.lastname@example.org.