UCMJ Article 104a
Fraudulent enlistment, appointment, or separation
Article 104a of the MCM specifies a service member may be subject to prosecution if they:
- procure 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
- procure his own separation from the armed forces by knowingly false representation or deliberate concealment as to his eligibility for that separation.
For charges of fraudulent enlistment or appointment to be applicable, the prosecution must demonstrate:
- the accused was enlisted or appointed in an armed force;
- the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding qualifications of the accused for enlistment or appointment;
- the accused’s enlistment or appointment was obtained or procured by that knowingly false representation or deliberate concealment; and
- That under this enlistment or appointment that accused received pay or allowances or both.
In order for fraudulent separation charges to be relevant, the prosecution must prove:
- the accused was separated from an armed force;
- the accused knowingly misrepresented or deliberately concealed a certain material fact or facts about the accused’s eligibility for separation; and
- the accused’s separation was obtained or procured by that knowingly false representation or deliberate concealment.
Understanding Article 104a (Fraudulent enlistment, appointment, or separation) of the UCMJ
A fraudulent enlistment, appointment, or separation is one in which the accused knowingly and willingly falsified or concealed elements or matters specific to the qualifications prescribed by law, regulation, or orders for a specific enlistment, appointment, or separation. This may include information used by a recruiting, appointing, or separating officer in reaching a decision regarding enlistment, appointment, or separation in a specific case.
Receipt of pay or allowances refers to Article 104a being applicable to a service member who enlists or accepts an appointment without being regularly separated from a prior enlistment or appointment only if that member has received pay or allowances under the fraudulent enlistment or appointment. This fraudulence includes the acceptance of food, clothing, shelter, or transportation from the Government but does not include anything furnished to the accused while in custody, confinement, arrest, or restraint pending trial.
If the accused used several misrepresentations or concealments for their one enlistment, appointment, or separation this constitutes one offense under Article 104a.
Maximum Possible Punishment for Violations of Article 104a
Service members convicted of an Article 104a Fraudulent Enlistment or Appointment violation face a maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
Those convicted of an Article 104a violation for Fraudulent Separation face a maximum possible punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
How do you defend against Article 104a Fraudulent Enlistment, Appointment, or Separation charges?
When you are facing the combined resources of the military as well as the current cultural climate, you need to be prepared to defend your career and your freedom. Crisp and Associates, LLC has a team of experienced trial attorneys who have won these cases. This team includes the firm’s founder, Jonathan Crisp, a highly respected former Army JAG with over 17 years of experience in military law and a sought-after speaker and lecturer on military law. In 2015 the firm recruited R. Davis Younts, a former prosecutor who was the number one rated Senior Defense Counsel in the Air Force and has taught at the Army and Air Force JAG Schools and successfully achieved acquittals in multiple rape, sexual assault, and sexual contact cases in courts-martial in multiple branches of the service.
If you or someone you know is facing Article 104a charges for Fraudulent Enlistment, Appointment, or Separation, you need to speak with a Military defense attorney right away. Please call Crisp and Associates Military at 888-258-1653 for a free consultation.
View more UCMJ Articles.