Criminal record & CAP

[Pylon]

There are some of us who hapened (like "my friend") to have a very very lead foot - 95 in a 65.....felony driving offense, should I not be allowed in CAP b/c I have a lead foot?

You know what?  Maybe not.

It speaks to judgement and common sense.  There's a reason 95 miles an hour is a felony, its reckless driving.  Tap somebody in the next lane at that speed and you won't need to worry about filing applications for anything, because you're either dead or incarcerated.

And you've already admitted that its a regular occurrence, so we have a pattern of poor judgement and unsafe conduct, yet I should entrust you with the safety of your fellow members and/or cadets?

Just because "everybody does it", or its "no big deal" in your eyes doesn't mean others don't take that kind of thing more seriously.

It must be lonesome up on that horse...

[Ned]

There's a reason 95 miles an hour is a felony, its reckless driving. 

See, that's part of the problem.

Merely going 95 miles an hour may be a felony in some places (which I kinda doubt, BTW), a misdemeanor in others, and only an infraction (traffic ticket) in places like California.

IOW, for doing exactly the same thing a person may be barred from membership in one wing (Felonyland), maybe barred in another after a little tap dancing in front of the squadron membership committee (misdemeanorland), or accepted without a moment's thought in other wings.

Odd for a policy that is supposed to help set uniform policies nationwide.

[jimmydeanno]

^Exactly.

One of our members has a wreckless driving charge on their driving record.  Wreckless driving in NH is a Class B misdemeanor:

A class B misdemeanor is any crime so designated by statute within or outside this code and any crime defined outside of this code for which the maximum penalty does not include any term of imprisonment or any fine in excess of the maximum provided for a class B misdemeanor in RSA 651:2, IV(a)

III. A person convicted of a class B misdemeanor may be sentenced to conditional or unconditional discharge, a fine, or other sanctions, which shall not include incarceration or probation but may include monitoring by the department of corrections if deemed necessary and appropriate.
    III-a. A person convicted of a violation may be sentenced to conditional or unconditional discharge, or a fine.
    IV. A fine may be imposed in addition to any sentence of imprisonment, probation, or conditional discharge. The limitations on amounts of fines authorized in subparagraphs (a) and (b) shall not include the amount of any civil penalty, the imposition of which is authorized by statute or by a properly adopted local ordinance, code, or regulation. The amount of any fine imposed on:
       (a) Any individual may not exceed $4,000 for a felony, $2,000 for a class A misdemeanor, $1,200 for a class B misdemeanor, and $1,000 for a violation.

And no, they don't have a CAP driver's license.  But they do one heck of a job.

[Eclipse]

It must be lonesome up on that horse...

Actually the air is much clearer up here...

There has to be a line drawn somewhere, and like most of these discussions, the number of members, or potential members, who fall into these categories is so small as to be statistically zero.

As has been pointed out several times, for the rare case when someone like Jason Bourne wants to join CAP and he has a questionable (or in Jason's case nonexistent) past, command discretion can override the issue.

Bottom line if you have a felony conviction for anything on your record, someone should be taking a second or third look at your application - the same way the military and/or Dominoes pizza will is you apply there.

There's also a message for all you lead-footed younglings out there.  In a world where no information ever dies, and you can Google most people's sins, its time to think twice before acting.

[SarDragon]

Here in CA, certain moving violations, including speeding <100 mph, can be removed from your driving record by attending a one day driving school. This can be done no more frequently than once every 18 months. It costs $25-50, in addition to the fine and added admin fee; 81 in a 65 runs about $280 total.

[Ned]

Here in CA, certain moving violations, including speeding <100 mph, can be removed from your driving record by attending a one day driving school. This can be done no more frequently than once every 18 months. It costs $25-50, in addition to the fine and added admin fee; 81 in a 65 runs about $280 total.

I'll go you one better.

It is also possible in California to apply to the court to have misdemeanors and most felonies retroactively dismissed and cleared if you have satisfactorily completed your probation.

IOW, you can be a convicted meth dealer, successfully complete three years of probabtion (some jail time, keep a job, test clean, and avoid more arrests), and then be "unconvicted" of the crime.  All you need do is apply to the court and pay the fee.

You can thereafter legally say you have "never been convicted of a crime" on job applications

(The arrest will still show on your criminal record, so CAP's FBI check should still pick it up, but you are not convicted of the crime at that point.)

Another good reason for unit membership committees.


Ned Lee
Former Legal Officer

[JCJ]

I think to somewhat restate Ned's case, criminal convictions per se are unimportant, and that abberant acts, criminal behaviors, and other misdeeds are the issue. ( perversion, communism, Amway sales, etc are no longer disqualifying factors) Now assuming that we actually believe that NHQ has some access to a US DOJ background screening tool ( NCIS, EPIC, Etc) criminal convictions are going to be a big red flag, and not having divulged these convictions ( or arrests) is going to get the applicant put on a very short excremental list.

I am skeptical about NHQ actually having the resources to do a true background check, based off of a set of fingerprint cards and  a D.O.B. I consider it much more likely that they use a private pre-employment screening company ( and probably the cheapest one, since an even marginal pre-employment screening costs in excess of $100.00) The bad news, is without having access to federal records, their is no single source of criminal record checks for the entire country. If I am wrong, I would love to hear how we gained access to federal records!

What Squadron has not had an attempt at infiltration by a deviant? How many have made it into CAP (answer:some) How many people accepted people into their Squadrons , when every fiber of their being screamed "No, No, No!" but went ahead anyway, thinking that they would be screened out if they were really bad guys? Maybe listen to that little voice when faced with a prospective member, even if they are admitted toilet hurlers ( The fiends this organization accepts!) If they tell you they shoplifted in High School, and you really want the unspeakable criminal anyway, you can probably get an exemption. Bank robbers, drug dealers, heroin addicts, prostitutes, and methodists we might have to do some "splain'n " to NHQ about.

Major Lord

My understanding it is an actual FBI check.  That is probably the most comprehensive background check available without personal interviews & additional forms, etc, but it doesn't cover everything.  But it covers alot.

A key principle here is full disclosure on the membership application.  If there has been a problem in the past and the prospective member fully discloses it along with whatever has been done or is being done to prevent a recurrence, then those who review the application have something to work with.  If a serious problem comes up on the background check that wasn't disclosed on the application, it is much more likley to be a "deal-killer" - that's pretty much a "real world" principle, not just CAP.

[Nick]

When CAP receives your print card, they submit the query to AFIS (FBI's automated fingerprint identificaiton system) using their ORI (ALAFCAP00) that is assigned to every criminal justice agency (go figure).  AFIS, using your prints and identifying information, matches on an NCIC person record, if one exists, and shows every III entry on your record -- typically any arrest in which a print card is submitted by the originating agency (ORA).  Every arrest, charge, and its disposition (dismissed, deferred adjudication, probation, sentencing, etc.) is shown on the record -- regardless if whether there was a dismissal, finding of not guilty, etc.  But, there must be a custodial arrest for the record to be initiated.

Now, CAP may do additional checks, but I know that's at least what is done with the print cards you submit.

[Gunner C]

When CAP receives your print card, they submit the query to AFIS (FBI's automated fingerprint identificaiton system) using their ORI (ALAFCAP00) that is assigned to every criminal justice agency (go figure).  AFIS, using your prints and identifying information, matches on an NCIC person record, if one exists, and shows every III entry on your record -- typically any arrest in which a print card is submitted by the originating agency (ORA).  Every arrest, charge, and its disposition (dismissed, deferred adjudication, probation, sentencing, etc.) is shown on the record -- regardless if whether there was a dismissal, finding of not guilty, etc.  But, there must be a custodial arrest for the record to be initiated.

Now, CAP may do additional checks, but I know that's at least what is done with the print cards you submit.

I see III records in NCIC all the time.  Even when you don't worry about convictions, it gives a pretty good indication of the person's character.  Sure, anyone could be arrested mistakenly for something and have the charges dropped, but I see people all the time who start off with misdemeanors and have an arrest once or twice a year for the next 5-10 years in escalating severity.  You get a real feel for the type of person you're dealing with. 

I've never had a bad report come back on anyone's CAP investigation.  Does anything get sent to the unit for action by the membership committee?

[Ned]

Does anything get sent to the unit for action by the membership committee?

No, per the reg adverse information from the FBI is acted upon only at NHQ.

[Eclipse]

Does anything get sent to the unit for action by the membership committee?

No, per the reg adverse information from the FBI is acted upon only at NHQ.

So what does the Unit CC actually get back?  I've never seen one either.

[NC Hokie]

Does anything get sent to the unit for action by the membership committee?

No, per the reg adverse information from the FBI is acted upon only at NHQ.

So what does the Unit CC actually get back?  I've never seen one either.

Nothing.  Sending the application to NHQ indicates that the local CC and membership committee have already accepted and vouch for the applicant.  If NHQ finds nothing that would warrant disqualification, there's no reason for them to think that the local authorities will change their minds.

[Eclipse]

Does anything get sent to the unit for action by the membership committee?

No, per the reg adverse information from the FBI is acted upon only at NHQ.

So what does the Unit CC actually get back?  I've never seen one either.

Nothing.  Sending the application to NHQ indicates that the local CC and membership committee have already accepted and vouch for the applicant.  If NHQ finds nothing that would warrant disqualification, there's no reason for them to think that the local authorities will change their minds.

Right, but what does the CC get back if the FBI check bounces?

[Spike]

Does anything get sent to the unit for action by the membership committee?

No, per the reg adverse information from the FBI is acted upon only at NHQ.

So what does the Unit CC actually get back?  I've never seen one either.

Nothing.  Sending the application to NHQ indicates that the local CC and membership committee have already accepted and vouch for the applicant.  If NHQ finds nothing that would warrant disqualification, there's no reason for them to think that the local authorities will change their minds.

Right, but what does the CC get back if the FBI check bounces?

Seriously if it bounces, some form of notification should be made to the member and Squadron Commander.  That way I don't sit as the Squadron Commander and be harassed by the new member as holding up his application.  They would be best to let me know, so I can pass it on that membership was denied, instead of me calling NHQ and getting the same information and having to pass it on anyway.

Sounds like NHQ is lazy.  They want me to make the inquiry, when they could easily just shoot me an email saying "DENIED". 

[Major Lord]

I am openly skeptical of the idea that CAP, a 501 C3 Corporation, has lawful access to NCIC printouts. Even public agencies accessing these lawfully are subject to DOJ audits. If CAP does have the authority to inspect NCIC records, I would love to hear or see where that authority originates. If it exists by some covert method, it is a criminal act, and a civil violation of the Fair Credit Reporting Act. In California, it is not uncommon for police to end up fired and/or in jail just to satisfy their curiosity about Paris Hilton's arrest record and home address......

Major Lord

[jimmydeanno]

I could have sworn that peoples criminal records and addresses were a matter of public record...

I go down to the town hall, I can get a record of who paid what in taxes, who has a lien, etc it comes with an address.  If I go to the police station, for about $5.00 I can get a printout of a criminal record...

[CAPSGT]

I am openly skeptical of the idea that CAP, a 501 C3 Corporation, has lawful access to NCIC printouts. Even public agencies accessing these lawfully are subject to DOJ audits. If CAP does have the authority to inspect NCIC records, I would love to hear or see where that authority originates. If it exists by some covert method, it is a criminal act, and a civil violation of the Fair Credit Reporting Act. In California, it is not uncommon for police to end up fired and/or in jail just to satisfy their curiosity about Paris Hilton's arrest record and home address......

Major Lord

How in the world does the FCRA apply to criminal records?

[Nick]

It is a VERY limited group (HQ CAP/DPX) that has access to the records that are returned from the investigation, and the information they obtain does not leave their section -- that's why it's called confidential screening.  I don't know what kind of relationship they have with the FBI, so I can't speak for how they are vetted and what contractual obligations they have to control the information they obtain.

As for what the units get back -- it's basically nothing.  When a new member starts in CAP, they are placed in a pending leadership status.  Once they undergo the confidential screening, they either pass the check in which case they go into an approved leadership status which is reflected on the unit's MML (or whatever it's called this year).  That is usually the only indication a commander receives that a member has been cleared.  If there is additional questions that DPX has for the member in order to make a decision, then they contact the member directly.  If they make a finding that disqualifies the member, then the executive director receives their finding to make a final decision (CAPR 39-2).

Maj Lord -- they are not deriving their access to NCIC as a 501(c)(3).  They have an ORI issued under the Air Force, so I trust some CAP-USAF work was done to grant that access.  Remember, this is bigger than just cadet protection.  Members are (may) be entrusted with Federal resources as part of their membership, so there is a risk that must be weighed in granting anyone a membership.  I compare this almost to an SF 85 investigation, where you are in a position of trust, but non-sensitive that would require a clearance, as an instrumentality of the United States -- even if it is as a volunteer.

Jimmy -- Criminal convictions are a matter of public record.  Findings of non-guilt, dismissals, etc. are not.

[Cecil DP]

If a prospective member gets a hit on the FBI's fingerprint screening, the individual is contacted directly by National HQ, and asked to explain it. If the explanation is not acceptable they are told the application is denied and thier membership fees returned.

[Major Lord]

Criminal records are generally a matter of public record. There are exceptions. An NCIC report is a not just a listing of criminal convictions, it also shows arrests, even though no conviction may have occurred. These are closely held records protected by law. You can go to any municipality and view conviction records, or in some cases, order them online. An employer accessing controlled documents and creating a "secret" report on a person is impermissible. A private organization paying for an investigative report is creating a "consumer report" within the meaning of the Fair Credit Reporting Act, and this is where the federal jurisdiction comes in. Of course, conspiring to access controlled records ( passport files, NCIC records, telephone records, etc) is a federal felony, even if the person requesting the information is not directly furnished the original source material. Other than NCIC, and a couple of other sources we won't talk about here, there is no nationwide publicly accessible source of criminal convictions...you need to search municipality by municipality, and State by State. Some states have computer records, some write them down on Popsicle wrappers and throw them in a big box.

As a matter of background, I am a licensed Private Investigator in California, and I have a branch office in Los Angeles that is in the business of pre-employment verification services for many large Corporations.

Major Lord