NCIS Expunges Sailor’s Name from Federal Background Check Records After Change in Law

On January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 took effect. One of the provisions of that law significantly improves servicemembers’ chances of getting their names removed from the federal DCII and NCIC background check databases.

The new law allows a servicemember who was investigated by military law enforcement agencies to have their identifying information removed from the investigation and any entries concerning that investigation removed from the federal databases when: 1) probable cause did not or does not exist to believe that the offense occurred or insufficient evidence exists to determine whether or not it occurred; or 2) probable cause did not or does not exist to believe that this individual committed the offense or insufficient evidence exists to determine whether this individual committed it.

The law further directs the reviewing agency to consider: 1) the extent or lack of corroborating evidence against the individual; 2) whether adverse administrative, disciplinary, or judicial action was taken against the individual; and 3) the type, nature, and outcome of any action taken against the individual.

Before this change in the law, the analysis was about whether probable cause had existed at the time the investigation began. This change allows the reviewing agency to consider everything that has happened since the investigation began to determine whether probable cause still exists to say that a crime occurred.

Our firm recently had success in expunging a client’s federal background records. He had been accused of an assault and investigated by NCIS. He was never given a chance to confront his accuser in any proceeding, instead the Navy improperly awarded NJP and illegally separated him from the Navy.

Our firm has successfully fought to get his separation reversed, his back pay awarded, and his retirement status established. As a final step, we submitted an appeal to NCIS to remove any mention of the investigation from the DCII and NCIC databases. NCIS reviewed the investigation under the new standards established in the FY21 NDAA and agreed that probable cause does not exist to believe that an offense occurred. This incident will be completely expunged from federal law enforcement databases and his record will be cleared.

We are thrilled that Congress took this action to support servicemembers who are wrongfully accused and to ensure that unsupported accusations cannot derail their futures. Thank you to our client for trusting us to fight for him and get the right result. If you or your loved one wants an unjustified entry cleared from these federal law enforcement databases, you need someone with experience who knows the law. We have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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