On July 7, 2014, a new law went into effect in the state of Alabama which allows Alabama residents who have been charged with a non-violent felony or misdemeanor, but never convicted, an opportunity to file to erase the record from public view. This new expungement law applies to a person who has been charged with a misdemeanor criminal offense, a traffic violation, or municipal ordinance violation and the charge was later dismissed with prejudice, no-billed by a grand jury, the person was found not guilty of the charge, or was dismissed without prejudice more than two years ago and has not been refiled. In these situations, the resident may then file with the circuit court in the county in which the charges were brought a petition to expunge the record. It should be noted that violent felonies listed in the Alabama code are not eligible for expungement but, under certain circumstances, non-violent felony charges may be able to be expunged.
As stated above, the petition for expungement is to be filed with the circuit court in the county where the charges were filed. The petition has to include a sworn statement that the person meets the expungement requirements, a case action summary or certified copy of the disposition, a certified copy of the arrest record from the Alabama criminal justice information center, and a description of the charges to be considered for removal along with a description of the agencies involved in the arrest and any incarceration. A filing fee of approximately $300 plus any court costs is required as well.
The question then becomes what a person does when filling out the security clearance questionnaire (SF 86) to the United States government when attempting to obtain a security clearance. Do expunged charges and/or convictions have to be listed? The answer is an unqualified yes. The security clearance questionnaire provides in relevant part as follows under Section 22:
For this section report information regardless of whether the record in your case has been sealed, expunged, or otherwise stricken from the court record, or the charge was dismissed.” (emphasis added)
It is been my experience that rarely is the behavior a problem for the government when issuing a security clearance. It is most often a problem when someone intentionally misstates, omits or obfuscates the answer to a question in the SF 86 itself. My advice is to be truly open and honest in answering all questions in the SF 86. If there is something that troubles or concerns you, then I advise applicants to answer the question truthfully and honestly and provide a detailed explanation, including mitigating factors, as to what exactly happened and how the issue is now resolved.
I have been handling security clearance revocation cases for several years. If your clearance is being revoked or, if you have questions or concerns about your problem areas as they relate to your submission in your SF 86, please contact my office to schedule an appointment.
Ron Sykstus is a Managing Partner of several of the Bond & Botes Law Offices throughout Alabama. He holds a Bachelor of Science from the University of Arizona, Tucson, and a Juris Doctorate from the Northern Illinois University College of Law. Ron has served in numerous positions throughout the U.S. Army and now utilizes his expertise in the areas of VA issues, security clearances, military law, and bankruptcy to assist his clients when they need it most. Read his full bio here.