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  • DNA Expungement: What You Need to Know

    DoD policy requires that DNA samples be taken from service members, civilians, and contractors who are suspected of committing certain criminal offenses. These samples are forwarded to the United States Army Criminal Investigation Laboratory (USACIL) which serves as the DoD’s Combined DNA Index System (CODIS) participating laboratory.

    Individuals from whom samples are taken but who were not convicted of a crime can request expungement of their DNA records. If your DNA was taken during a military criminal investigation, contact our military attorneys today to learn more about your expungement rights.

    Current Service Members

    Current service members from whom DNA samples were taken but who were not convicted at general or special court-martial may request in writing that their DNA records be expunged. Conviction at court-martial does not include non-judicial punishment, administrative separation, or referral to a summary court-martial. For example, if a service member has DNA taken for an offense that ultimately results in punishment under Article 15 (non-judicial punishment) or in administrative separation (chapter board), those adverse actions are not considered a “conviction” and the service member may request expungement of their DNA records.

    Expungement requests must include proof that the charges were dismissed, withdrawn, never preferred, or otherwise have not and will not result in a criminal conviction. This service member’s request will be reviewed by their commanding officer and then submitted to the relevant DoD law enforcement organization to validate that there is no conviction that would prohibit expungement. Once confirmed, the DoD law enforcement organization will send a request for expungement to USACIL. When a request for expungement is properly submitted, USACIL will expunge the DNA records, destroy the submitted sample, notify the service member of its actions, and maintain documentation of that notice.

    Former Service Members

    Former Service members from whom samples were taken but who were not convicted of any offense by a general or special court-martial, or who can provide a certified copy of a final court order documenting the charge has been dismissed or resulted in an acquittal, can also request that their DNA records be expunged.

    Requests for expungement from former service members will be submitted to the Clerk of Court of the Military Department’s Court of Criminal Appeals and must include proof showing that none of the offenses giving rise to the collection of DNA resulted in a conviction at a general or special court-martial. This could include a final court order showing that such a conviction was overturned or showing action by the convening authority that has the effect of a full acquittal. A court order is not final if time remains for an appeal or application for discretionary review with respect to the order.

    Upon receipt of an expungement request, the Clerk of Court of the Military Department’s Court of Criminal Appeals will search their records for any conviction pertaining to the former service member and determine whether expungement is proper. If so, the Clerk of Court will send requests for expungement to USACIL. USACIL will expunge the DNA profile from the CODIS database upon receipt of a complete request.

    Civilians

    DoD law enforcement organizations are required to take DNA samples from civilians whom they detain and who remain within their control when there is probable cause to believe the civilian has committed a qualifying federal offense. DoD regulations specifically require that DNA samples be taken from all alleged civilian drug offenders, except in cases of simple possession and personal use. DNA samples may also be taken by civilian law enforcement organizations. Law enforcement organizations are not required to take samples from a civilian not in their control at the time when a probable-cause determination is made.

    DNA samples obtained by law enforcement will be forwarded to USACIL and potentially, to the FBI Laboratory. Civilians who are not convicted of any offense, or whose conviction was overturned, may request in writing that their DNA sample be expunged. The requester must provide, for each charge for which the DNA record could have been included in the national DNA index, a certified copy of a final court order showing that such charge has been dismissed, resulted in an acquittal, or that no charge was filed. Expungement is not authorized if the individual seeking expungement has a Federal conviction for a separate offense that should have but did not result in the collection and forwarding of DNA to USACIL.

    Contact MJA Today

    If your DNA was taken during a military criminal investigation, you may be eligible to request expungement of your DNA records. Contact Military Justice Attorneys today to speak with an attorney about your options.

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