Will NJP Show Up On A Background Check?
NJP can show up on a background check, despite your lawyer telling you it wouldn’t.
Lately my office has received an uptick in calls from current and former military personnel who are outraged that their NJP/Mast/Art 15 or other form of administrative punishment popped up on a background check. Usually the call begins something like, “my lawyer assured me that it was not a conviction, how did this happen?!” Well, your lawyer was right and wrong. An NJP is not a conviction but it can absolutely follow you around, even after you’ve been discharged from military service.
NJP is not conviction.
NJP, Mast, Office Hours—it’s all the same. Under Article 15 of the UCMJ, your commanding officer may elect to handle certain UCMJ offenses “in house” by offering you non-judicial punishment, keyword being “offer”. Whether or not you choose to accept is entirely up to you. Just be sure you seek advice of counsel prior to making that decision. These options and rights are a topic for another time and are best answered by a military attorney in person or over the phone. Since your commanding officer is the judge and jury, rather than an actual judge or jury, it does not serve as a conviction. Interestingly, it’s typically not the actual NJP itself that shows up on your record. If you were investigated or arrested by OSI/NCIS/CID then it is possible you have a record.
How do I know if I have a record?
The National Crime Information Center (NCIC) is the database to blame. It is a computerized database of documented criminal justice information available to virtually any law enforcement agency nationwide. Primarily, NCIC is a useful resource used to apprehend fugitives, locate missing persons, recover stolen property, etc. But NCIC also contains criminal history information or a “rap sheet”, which includes information taken from certain fingerprint submissions and also includes information on persons that were at one time the subject of investigation.
Department of Defense (DoD) Instruction 5505.11 establishes policies and procedures for reporting criminal history data to NCIC: “Those subjects who have resultant judicial, non-judicial military proceedings, or where a servicing Staff Judge Advocate or legal advisor found probable cause existed to believe the subject has committed the offense in which they were titled, will remain in NCIC.” So it appears that an extremely low and subjective bar has been set for which offenses are included and which are not. Sadly, these records remain in NCIC even if the case results in a dismissal or acquittal.
You can obtain a copy of your record through a request under the Freedom of Information Act (FOIA). Here is the link: https://www.fbi.gov/foia/requesting-fbi-records.
Who has access to my records on NCIC?
All requests for viewing a record on NCIC must be made through a law enforcement agency. Thus, most calls to my office come from current and former military personnel seeking some type of government job or require a background check for a security clearance.
What to do if you have a record in NCIC.
Requests for removal can be submitted in two ways. The first is directly to the reporting agency, e.g., OSI, NCIC, CID, etc. The second is to submit a request for removal to the Board for Correction of Military Records (each service has its own). According to DoD Instruction 5505.7, the record shall be removed (1) in the case of a mistaken identity, or (2) if it’s later determined that a mistake was made and that credible information did not actually exist.
Bottom line: if you were investigated, you may have a record. Is that necessarily fair? Absolutely not. But it is a harsh reality of being the subject of a military investigation. Start taking steps to get it removed today or retain a military criminal defense attorney to do it for you.