Article 104a — Fraudulent enlistment, appointment, or separation

Part IV · Punitive Articles

Article 104a. Fraudulent enlistment, appointment, or separation · MCM ¶ 35

2024 Manual for Courts-Martial, United States

(a) Text of statute. Any person who—

(1) procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances thereunder; or

(2) procures his own separation from the armed forces by knowingly false representation or deliberate concealment as to his eligibility for that separation;

shall be punished as a court-martial may direct.

(b) Elements.

(1) Fraudulent enlistment or appointment.

(a) That the accused was enlisted or appointed in an armed force;

(b) That the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding qualifications of the accused for enlistment or appointment;

(c) That the accused’s enlistment or appointment was obtained or procured by that knowingly false representation or deliberate concealment; and

(d) That under this enlistment or appointment that accused received pay or allowances or both.

(2) Fraudulent separation.

(a) That the accused was separated from an armed force;

(b) That the accused knowingly misrepresented or deliberately concealed a certain material fact or facts about the accused’s eligibility for separation; and

(c) That the accused’s separation was obtained or procured by that knowingly false representation or deliberate concealment.

(1) In general. A fraudulent enlistment, appointment, or separation is one procured by either a knowingly false representation as to any of the qualifications 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.

(2) Receipt of pay or allowances. 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 104a 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. However, whatever is furnished the accused while in custody, confinement, arrest, or other restraint pending trial for fraudulent enlistment or appointment is not considered an allowance. The receipt of pay or allowances may be proved by circumstantial evidence.

(3) One offense. One who procures one’s own enlistment, appointment, or separation by several misrepresentations or concealment as to qualifications for the one enlistment, appointment, or separation so procured, commits only one offense under Article 104a.

(d) Maximum punishment.

(1) Fraudulent enlistment or appointment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

(2) Fraudulent separation. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

(e) Sample specification s.

(1) For fraudulent enlistment or appointment. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, by means of [knowingly false representations that (here state the fact or facts material to qualification for enlistment or appointment which were represented), when in fact (here state the true fact or facts)] [deliberate concealment of the fact that (here state the fact or facts disqualifying the accused for enlistment or appointment which were concealed)], procure himself/herself to be (enlisted as a __________) (appointed as a __________) in the (here state the armed force in which the accused procured the enlistment or appointment), and did thereafter, (at/on board—location), receive (pay) (allowances) (pay and allowances) under the enlistment) (appointment) so procured.

(2) For fraudulent separation. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, by means of [knowingly false representations that (here state the fact or facts material to eligibility for separation which were represented), when in fact (here state the true fact or facts)] [deliberate concealment of the fact that (here state the fact or facts concealed which made the accused ineligible for separation)], procure himself/herself to be separated from the (here state the armed force from which the accused procured (his) (her) separation).

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

Maximum punishment

DD, TF, 2 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, by means of [knowingly false representations that (here state the fact or facts material to qualification for enlistment or appointment which were represented), when in fact (here state the true fact or facts)] [deliberate concealment of the fact that (here state the fact or facts disqualifying the accused for enlistment or appointment which were concealed)], procure himself/herself to be (enlisted as a __________) (appointed as a __________) in the (here state the armed force in which the accused procured the enlistment or appointment), and did thereafter, (at/on board—location), receive (pay) (allowances) (pay and allowances) under the enlistment) (appointment) so procured.

Elements

(1) That (state the time and place alleged), the accused was enlisted or appointed in the United States (Army) (__________);

(2) That the accused knowingly misrepresented or deliberately concealed (a) certain material fact(s) about (his) (her) qualifications for (enlistment) (appointment), that is, (state the facts allegedly concealed or misrepresented);

(3) That the accused’s enlistment or appointment was obtained or procured by the knowingly false representation or deliberate concealment; and

(4) That under this (enlistment) (appointment) the accused received (pay) (and) (allowances).

Definitions & other instructions

“Enlistment” as used in the specification means a voluntary entry or enrollment for a specific term of service in one of the Armed Forces by any person except a commissioned or warrant officer.

“Appointment” as used in the specification means any method by which a commissioned or warrant officer enters into the service of an Armed Force.

“Material” means important.

(“Receipt of allowances” includes the acceptance of money, food, clothing, shelter, or transportation from the Government. (However, items furnished to the accused while in custody, confinement, arrest, or other restraint pending trial for fraudulent enlistment or appointment are not considered allowances.))

NOTE 2. Other instructions. If the accused’s enlistment or appointment was allegedly procured by a knowingly false representation, Instruction 7-3, Circumstantial Evidence (Knowledge), should ordinarily be given. If the accused’s enlistment or appointment was procured by a deliberate concealment of material facts, Instruction 7-3, Circumstantial Evidence (Intent), should ordinarily be given. If the receipt of pay or allowances is established by circumstantial evidence, Instruction 7-3, Circumstantial Evidence, should ordinarily be given.

Source: Instruction 3a-35-1 · view original on jagcnet.army.mil

Maximum punishment

DD, TF, 5 years, E-1. (Category 2)

Sample specification

In that _____________ (personal jurisdiction data), did, (at/on board—location), on or about __________,, by means of [knowingly false representations that (here state the fact or facts material to eligibility for separation which were represented), when in fact (here state the true fact or facts)] [deliberate concealment of the fact that (here state the fact or facts concealed which made the accused ineligible for separation)], procure himself/herself to be separated from the (here state the armed force from which the accused procured (his) (her) separation).

Elements

(1) That (state the time and place alleged), the accused was separated from the United States (Army) (__________);

(2) That the accused knowingly misrepresented or deliberately concealed (a) certain material fact(s) about (his) (her) eligibility for separation, that is, (state the facts allegedly concealed or misrepresented); and

(3) That the accused’s separation was obtained or procured by the knowingly false representation or deliberate concealment.

Definitions & other instructions

“Material” means important.

“Separation” means any method by which a member of an Armed Force is released from the service. “Release from the service” means any severance or disconnection from an active or inactive duty status.

NOTE 2. Other instructions. If the accused’s separation was allegedly procured by a knowingly false representation, Instruction 7-3, Circumstantial Evidence (Knowledge), should ordinarily be given. If the accused’s separation was procured by a deliberate concealment of material facts, Instruction 7-3, Circumstantial Evidence (Intent), should ordinarily be given.

Source: Instruction 3a-35-2 · view original on jagcnet.army.mil