2011 (September Term)
United States v. Watson, 71 M.J. 54 (an applicant commits the offense of fraudulent enlistment when he or she provides false information about matters that would constitute either an absolute bar to enlistment or would constitute a bar to enlistment without a waiver from the service branch).
(the elements of fraudulent enlistment or appointment, Article 83, UCMJ, are: (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).
(the plain language of Article 83 states that an accused must make a knowingly false representation or deliberate concealment as to his qualifications; based on this language, the false representation need not concern a matter that would absolutely bar him from the service; such a view would be contrary to the plain language of the statute; an accused violates Article 83 by providing false information about a matter that would preclude him from entry without the service waiving the disqualification).
(by deliberately concealing his inpatient psychiatric treatment from a recruiter when he enlisted in the Marine Corps, appellant satisfied the elements of fraudulent enlistment under Article 83 even though his misrepresentation concerned a matter that could have been waived by the service and was not an absolute bar to enlistment).
(Article 83 applies to a misrepresentation about any disqualifying factors for enlistment, whether established by statute or service regulation; it is not necessary that the applicant know that the truth would bar his enlistment, whether absolutely or absent a waiver; neither is it necessary to know what the ultimate result of the waiver process would have been; it is sufficient that the applicant knows that his answers to questions regarding his qualifications were untruthful by commission or omission).
States v. Holbrook, 66 M.J. 31 (the fraudulent
enlistment statute, Article 83,
UCMJ, and the
every fact regarding a qualification for
enlistment may be material; the President’s addition of the adjective
“material” to the second element of the fraudulent enlistment offense
(no authority supports the argument that to be guilty of fraudulent enlistment, an accused must know that the facts he misrepresented were material to his enlistment at the time he made them, because that makes criminal liability turn on whether the untruthful applicant to the armed forces knows that the truth might preclude his enlistment; it would be irrational to require that an applicant fully understand the consequences of a truthful statement because it would mean prospective enlistees would need to possess thorough knowledge of the service’s enlistment standards and policies prior to applying for and entering active duty).
(it is undisputed that appellant’s providence inquiry established that he was enlisted in the armed forces, received pay and allowances, knowingly misrepresented the extent of his preservice drug use, and that such prior drug use was relevant to qualification for enlistment in the Coast Guard -- i.e., material; appellant’s providence inquiry established both every element of an Article 83, UCMJ, offense and the facts alleged in the specification; any prevarication during the providence inquiry regarding the timing of Appellant’s knowledge of the materiality of his misrepresentations did not raise a substantial basis in law and fact for questioning his guilty plea to a violation of Article 83, UCMJ).
(appellant’s guilty plea to fraudulent enlistment was provident even though the military judge failed to establish appellant’s knowledge that the facts he misrepresented were material to his enlistment at the time he made them; that knowledge was not necessary for his guilty plea to fraudulent enlistment to be provident).