Part IV · Punitive Articles

Article 104b. Unlawful enlistment, appointment, or separation · MCM ¶ 36

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute. Any person subject to this chapter who effects an enlistment or appointment in or a separation from the armed forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.
(b) Elements .
(1) That the accused effected the enlistment, appointment, or separation of the person named;
(2) That this person was ineligible for this enlistment, appointment, or separation because it was prohibited by law, regulation, or order; and
(3) That the accused knew of the ineligibility at the time of the enlistment, appointment, or separation.
(c) Explanation It must be proved that the enlistment, . appointment, or separation was prohibited by law, regulation, or order when effected and that the accused then knew that the person enlisted, appointed, or separated was ineligible for the enlistment, appointment, or separation.
(d) Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(e) Sample specification . In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction, if required), on or about _____ 20 __, effect [the (enlistment) (appointment) of __________ as a __________ in (here state the armed force in which the person was enlisted or appointed)] [the separation of __________ from (here state the armed force from which the person was separated)], then well knowing that the said __________ was ineligible for such (enlistment) (appointment) (separation) because (here state facts whereby the enlistment, appointment, or separation was prohibited by law, regulation, or order).
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3a-36-1EFFECTING UNLAWFUL ENLISTMENT, APPOINTMENT, OR SEPARATION
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, 5 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location) on or about __________, effect [the (enlistment) (appointment) of __________ as a __________ in (here state the armed force in which the person was enlisted or appointed)] [the separation of __________ from (here state the armed force from which the person was separated)], then well knowing that the said __________ was ineligible for such (enlistment) (appointment) (separation) because (here state facts whereby the enlistment, appointment, or separation was prohibited by law, regulation, or order).

Elements

(1) That (state the time and place alleged), the accused effected the (enlistment) (appointment) (separation) of (state the name of the person allegedly unlawfully enlisted, appointed, or separated) (in) (from) the United States (Army) (__________);

(2) That (state the name of the person allegedly unlawfully enlisted, appointed, or separated) was ineligible for this (enlistment) (appointment) (separation) because it was prohibited by (law) (regulation) (order), in that (state the ineligibility as described in the specification); and

(3) That the accused knew of the ineligibility at the time of the (enlistment) (appointment) (separation).

Definitions & other instructions

(“Enlistment” 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” means any method by which a commissioned or warrant officer enters into the service of an Armed Force.)

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

NOTE 2. Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
Source: Instruction 3a-36-1 · view original on jagcnet.army.mil