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).
2008 (Transition)
United
States v. Holbrook, 66 M.J. 31 (the fraudulent
enlistment statute, Article 83,
UCMJ, and the
(not
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
in the
(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).