What is fraudulent enlistment, appointment, or separation?
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A fraudulent enlistment, appointment, or separation is one procured by either a knowingly false representation as to any of the qualifications or disqualifications prescribed by law, regulation, or orders for the specific enlistment, appointment, or separation, or a deliberate concealment as to any of those disqualifications.
Matters that may be material to an enlistment, appointment, or separation include any information used by the recruiting, appointing, or separating officer in reaching a decision as to enlistment, appointment, or separation in any particular case, and any information that normally would have been so considered had it been provided to that officer. MCM, pt. IV, ¶ 7c(1).
Fraudulent Enlistment or Appointment.
False Representation or Concealment
Testimony of the accused’s recruiters and documentary evidence of his traffic violations proved that the accused willfully concealed offenses, the cumulative number of which would have disqualified him from enlistment, and supported a conviction for fraudulent enlistment. United States v. Hawkins, 37 M.J. 718 (A.F.C.M.R. 1993).
The accused perpetrated a fraudulent enlistment by enlisting in the Marine Corps using his brother’s name. United States v. Victorian, 31 M.J. 830 (N.M.C.M.R. 1990) (holding, however, that the statute of limitations barred prosecution for fraudulent enlistment).
Falsely misrepresenting educational qualifications and willfully concealing arrest record constituted fraudulent extension of enlistment, which was not preempted by Article 83. United States v. Weigand, 23 M.J. 644 (A.C.M.R. 1986). Accused fraudulently entered the Army on several occasions using, at varying times, eleven different names. United States v. Brown, 22 M.J. 597 (A.C.M.R. 1986).
Receipt of Pay or Allowances.
An essential element of the offense of fraudulent enlistment or appointment is that the accused shall have received pay or allowances thereunder. Accordingly, a member of the armed forces who enlists or accepts an appointment without being regularly separated from a prior enlistment or appointment should be charged under Article 83 only if that member has received pay or allowances under the fraudulent enlistment or appointment.
Acceptance of food, clothing, shelter, or transportation from the government constitutes receipt of allowances. Whatever is furnished the accused while in custody, confinement, or other restraint pending trial for fraudulent enlistment or appointment, however, is not considered an allowance. MCM, pt. IV, ¶ 7c(2).
The accused procured a fraudulent separation from the Army by submitting, as her own, a urine sample obtained from a pregnant servicemember. The separation was invalid, and the accused remained subject to court-martial jurisdiction. Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981). The 5th Circuit Court of Appeals affirmed a District Court ruling, in summary judgment, that Article 3(b) was constitutional. Wickham v. Hall, 706 F.2d. 713 (5th Cir. 1983).
Court-martial had jurisdiction to try and punish accused for offense of procuring his false separation from the Army. The accused apparently forged the signatures of several NCOs and the post commander in order to fraudulently obtain a DD Form 214 releasing him from active duty. United States v. Cole, 24 M.J. 18 (C.M.A. 1987) (upholding the constitutionality of Article 3(b)).
Accused was properly convicted, under Article 80, of attempting to procure a fraudulent separation from the Army. United States v. Marshall, 40 C.M.R. 138 (C.M.A. 1969); see also United States v. Horns, 24 C.M.R. 663 (A.F.B.R. 1957) (accused convicted of attempting to procure a fraudulent separation from the Air Force by making a false sworn statement that he was a homosexual and had engaged in homosexual activities; conviction set aside because of newly discovered psychiatric evidence).
Procuring one’s own enlistment, appointment, or separation by several misrepresentations or concealments as to qualifications for the one enlistment, appointment, or separation is only one offense under Article 83. MCM, pt. IV, ¶ 7c(3).
Interposition of the Statute of Limitations.
Plea of guilty to fraudulent enlistment was improvident, because prosecution of that offense was barred by the statute of limitations and the record failed to indicate that the accused was aware of the bar. United States v. Victorian, 31 M.J. 830 (N.M.C.M.R. 1990).
Defense counsel’s failure to raise statute of limitations that barred accused’s conviction for fraudulent enlistment fell below minimum acceptable level of competence demanded of attorneys. United States v. Jackson, 18 M.J. 753 (A.C.M.R. 1984), aff’d in part, rev’d in part, 20 M.J. 414 (C.M.A. 1985).
Fraudulent extension of enlistment by means of a false official statement, charged as a violation of Article 134, was not preempted by Article 83 nor Article 107. United States v. Wiegand, 23 M.J. 644 (A.C.M.R. 1986).