Attachment 4- DoDI 1402.05, Enclosure 3..pdf

DoDI 1402.05, September 11, 2015

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(5) Chaplains, chaplains’ assistants, religious program specialists, and other individuals employed or performing child care services duties for children under 18 years of age on a DoD installation or as part of a military-sanctioned program.

(6) Foster and respite child care providers on a DoD installation, program, or as part of a military-sanctioned activity.

(7) Health and mental health care personnel, employed or performing child care services duties on a DoD installation, in a DoD sanctioned program, or as part of a military-sanctioned activity, including but not limited to physicians, dentists, nurse practitioners, clinical social workers, physical therapists, speech-language pathologists, clinical support staff (including residents), registered nurses, licensed practical nurses, nursing assistants, play therapists, and technicians. Healthcare providers participating in TRICARE will be governed by TRICARE policy.

(8) Individuals employed or performing child care duties in social services, residential care, rehabilitation programs, detention, and correctional services on a DoD installation, program, or as part of a military-sanctioned activity.

(9) Any other individuals reasonably expected to have regular contact with children on a DoD installation, in a DoD sanctioned program, or as part of a military-sanctioned activity, including specified volunteers and any person 18 years of age or older residing in an FCC, foster, or respite care home.

f. The DoD Components will also determine any other classes of positions subject to criminal history background checks, taking care to ensure that all individuals who have regular contact with children when providing child care services are investigated and the requirement must pertain to the class as a whole.

g. Individuals designated in non-specified volunteer positions must always be under direct LOSS in accordance with Enclosure 4.

2. TYPES OF BACKGROUND CHECKS. Procedures for conducting a background check on individuals in paragraphs 1.e.(1)-(9) of this enclosure differ based on the employment status of the individual. Military members are subject to the background check requirements of Reference

(g) and this enclosure. The FBI criminal history background checks for all categories of individuals must be fingerprint-based and fingerprints must be captured using an FBI-approved system. State criminal history repository (SCHR) checks may require hardcopy fingerprint submissions. State checks must include the State child abuse and neglect repository and the State sex offender registry. The Component must request a check of the State child abuse and neglect repository and the State sex offender registry if they are not automatically checked as part of the standard SCHR check.

a. Criminal History Background Checks for DoD Civilian and Military Personnel Who Are Investigated at the NACI or a Higher Level Pursuant to DoD’s Personnel Security Program

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(1) DoD civilian and military personnel required by Reference (g) to be investigated according to the requirements of the NACI or a higher level investigation and who have regular contact with children under 18 years of age in DoD-sanctioned programs will be investigated and adjudicated in accordance with the provisions of Reference (g).

(2) These personnel will also be subject to the additional requirements of the Child Care National Agency Check and Inquiries (CNACI) and the criteria for presumptive and automatic disqualification as specified in section 3 of this enclosure.

b. Criminal History Background Checks for Civilian Employees (APF and NAF)

(1) In accordance with section 13041 of Reference (c) and Volumes 731 and 1403 of Reference (e), complete a CNACI, which includes an FBI criminal history background check conducted through the Criminal Justice Information Services Division of the FBI and SCHR checks through State repositories of all States that an employee or prospective employee lists as current and former residences on an employment application. Results of an advanced FBI fingerprint check must be provided, before completion of the full CNACI, to determine employment under LOSS.

(2) Individuals with a prior DoD affiliation must also complete an IRC, which includes an installation law enforcement check, drug and alcohol records check, and a check of the Family Advocacy Program (FAP) records for a minimum of 2 years before the date of the application.

c. Criminal History Background Checks for FCC Providers and DoD Contractors

(1) In accordance with section 13041 of Reference (c), complete a CNACI, which includes an FBI criminal history background check conducted through the Criminal Justice Identification Services Division of the FBI and SCHR checks through State repositories of all States that a provider or contractor or prospective provider or contractor lists as current and former residences in an employment application. Results of an advanced FBI fingerprint check must be provided before completion of the full CNACI. Results for contractors may be used to determine employment under LOSS.

(2) Individuals with a prior DoD affiliation must also complete an IRC, including an installation law enforcement check, drug and alcohol records check, and a check of the FAP records for a minimum of 2 years before the date of the application.

d. Criminal History Background Checks for Others

(1) In accordance with section 13041 of Reference (c), only an FBI advanced fingerprint check is required for criminal history background checks for volunteers and persons 18 years of age or older residing in an FCC, foster, or respite care home.

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(2) Individuals with a prior DoD affiliation must also complete an IRC to include: an installation law enforcement check, drug and alcohol records check, and a check of the FAP records for a minimum of 2 years before the date of the application.

e. Timely Completion. To ensure timely completion, the DoD Components will establish procedures to initiate or request criminal history background check results, follow up to ensure checks have been completed, and address situations where there is a delay in receiving results.

In no event will an individual subject to this instruction be presumed to have a favorable background check merely because there has been a delay in receiving the results of the requisite background check. If no response from the State(s) is received within 60 days, determinations based upon the CNACI report may be made.

3. CRITERIA FOR DISQUALIFICATION BASED ON RESULTS OF CRIMINAL HISTORY

BACKGROUND CHECKS. The ultimate decision to determine how to use information obtained from the criminal history background checks in selection for positions involving the care, treatment, supervision, or education of children must incorporate a common sense decision based upon all known facts.

a. Evaluation Authority. Adverse information is evaluated by the DoD Component who is qualified at the appropriate level of command in interpreting criminal history background checks.

(1) All information of record both favorable and unfavorable will be assessed in terms of its relevance, recentness, and seriousness. Likewise, positive mitigating factors should be considered. Final suitability decisions will be made by that commander or designee.

(2) Criteria that will result in disqualification of an applicant require careful screening of the data. A disqualifying event may be the basis for a non-selection, withdrawal of a tentative offer of employment, ineligibility for facility access, removal from a contract, a suitability action under part 731 of Reference (d), a probationary termination, an adverse action, or other appropriate action.

b. Criteria for Automatic Disqualification. No person, regardless of circumstances, will be approved to provide child care services pursuant to this instruction if the background check discloses:

(1) That the individual has been convicted in either a civilian or military court (to include any general, special or summary court-martial conviction) or received non-judicial punishment (under Article 15 of chapter 47 of Title 10, U.S.C., also known and referred to in this instruction as “the Uniform Code of Military Justice (UCMJ)” (Reference (h)) for any of the following:

(a) A sexual offense.

(b) Any criminal offense involving a child victim.

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(c) A felony drug offense.

(2) That the individual has been held to be negligent in a civil adjudication or administrative proceeding concerning the death or serious injury to a child or dependent person entrusted to the individual’s care.

4. SUITABILITY AND FITNESS DETERMINATIONS FOR INDIVIDUALS INVOLVED

WITH THE PROVISION OF CHILD CARE SERVICES. Suitability and fitness determinations for individuals subject to this instruction will be made in accordance with Volume 731, Volume 1231, and Volume 1403 of Reference (e), and part 1201 of Title 5, U.S.C. (Reference (i)), as appropriate. The following may be the basis for non-selection, withdrawal of a tentative offer of employment, ineligibility for facility access, removal from a contract, a suitability action under Reference (e), a probationary termination, an adverse action, or other appropriate action.

a. Criteria for Presumptive Disqualification. Officials charged with making determinations pursuant to this instruction must include in the record a written justification for any favorable determination made where background check findings include any of the following presumptively disqualifying information:

(1) A FAP record indicating that the individual met criteria for child abuse or neglect or civil adjudication that the individual committed child abuse or neglect.

(2) Evidence of an act or acts by the individual that tend to indicate poor judgment, unreliability, or untrustworthiness in providing child care services.

(3) Evidence or documentation of the individual’s past or present dependency on or addiction to any controlled or psychoactive substances, narcotics, cannabis, or other dangerous drug without evidence of rehabilitation.

(4) A conviction, including any general, special, or summary court-martial conviction, or non-judicial punishment under Article 15 of the UCMJ for:

(a) A crime of violence committed against an adult.

(b) Illegal or improper use, possession, or addiction to any controlled or psychoactive substances, narcotics, cannabis, or other dangerous drug.

(5) A civil adjudication that terminated the individual’s parental rights to his or her child, except in cases where the birth parent places his or her child for adoption.

b. Evaluation of Presumptively Disqualifying Information. The DoD Components will establish and oversee procedures for the evaluation of presumptively disqualifying information for all categories of individuals in section 2 of this enclosure. Evaluation of presumptively disqualifying information for APF and NAF personnel must be in accordance with Volume 731 and Volume 1403 of Reference (e), respectively.

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c. Criteria for Disqualification Under LOSS. If an investigation of an individual who is currently working under LOSS subsequently results in an unfavorable determination, the DoD Components will take action to protect children by reassigning or removing the individual from employment, contract, or volunteer status.

d. Disputes and Appeals. The DoD Components will establish and oversee procedures for the communication of determinations and the appeal of unfavorable determinations for all categories of individuals in section 2 of this enclosure. The procedures for civilian personnel are subject to Volume 731 of Reference (e) for APF employees and Volume 1403 of Reference (e) for NAF employees.

5. REVERIFICATION

a. All DoD civilian employees (both APF and NAF), military personnel, DoD contractors, and any other individual reasonably expected to have regular contact with children on a DoD installation, in a DoD program, or as part of a military or DoD-sanctioned activity, including specified volunteers, or any person 18 years of age or older residing in an FCC, foster, or respite care home, who continue to perform duties in the position for which their initial background check was conducted, must undergo a reverification every 5 years.

b. The reverification, conducted by the DoD, for employees, military personnel and DoD contractors will include a Child Care Special Agreement Check of the FBI fingerprint database and the SCHR that includes child abuse and neglect and sex offender registries for all States lived in the 5 years since the date of the last investigation or reverification, and an IRC of all affiliated installations for the 5 years since the date of the last IRC.

c. Reverification for specified volunteers and persons 18 years of age or older, residing in an FCC, foster, or respite care home will consist of a Child Care Special Agreement Check of the FBI fingerprint database and an IRC of all affiliated installations for the 5 years since the date of the last investigation or reverification. FCC providers must undergo the same reverification annually.

d. If the reverification results in an unfavorable determination, the DoD Components will take action to protect children by reassigning or removing the individual from employment, contract, or volunteer status.

e. If derogatory information surfaces within the 5 years before the reverification, the DoD Component will take action to protect children by reassigning or suspending from having contact with children, any individual, contractor, or volunteer until the case is resolved.

6. SELF-REPORTING

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a. Individuals who have regular contact with children under 18 years of age in DoD-sanctioned programs who have a completed background check are required to immediately report subsequent automatic disqualification criteria under paragraph 3a of this enclosure and presumptive disqualification criteria under paragraphs 3b(1), (4), and (5) of this enclosure.

b. The DoD Components will establish procedures for:

(1) Informing individuals of the requirement to immediately report any incident or conviction that may invalidate their prior background check and make them ineligible to work or have contact with children.

(2) Responding to and evaluating reports made by such individuals, and taking appropriate action until the case has been resolved or closed.