UCMJ Article 104a: Fraudulent Enlistment, Appointment, or Separation
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Article 104a punishes getting into the armed forces, or out of them, by a knowingly false representation or deliberate concealment about one’s own qualifications or eligibility. Fraudulent enlistment or appointment carries a dishonorable discharge and 2 years, but only if the person received pay or allowances under it; fraudulent separation carries a dishonorable discharge and 5 years.
Getting in, or out, by false representation
Under 10 U.S.C. § 904a, any person who:
- “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
- “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.
Before January 1, 2019, this was Article 83. The Military Justice Act of 2016 renumbered it (Pub. L. 114-328, § 5401(1)); Article 83 is now malingering.
Proof for each form, side by side
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 35.b:
| Fraudulent enlistment or appointment | Fraudulent separation |
|---|---|
| The accused was enlisted or appointed in an armed force | The accused was separated from an armed force |
| The accused knowingly misrepresented or deliberately concealed a material fact about qualifications | The accused knowingly misrepresented or deliberately concealed a material fact about eligibility for separation |
| The enlistment or appointment was obtained by that misrepresentation or concealment | The separation was obtained by that misrepresentation or concealment |
| The accused received pay or allowances under it | (no pay element) |
What is “material”
Matters that may be material include “any information used by the recruiting, appointing, or separating officer in reaching a decision” in the case, “and any information that normally would have been so considered had it been provided to that officer” (¶ 35.c(1)). A concealed fact can be material even if the recruiter never asked about it, if it is the kind of information that would normally have been considered.
The pay-or-allowances element
For enlistment or appointment, receipt of pay or allowances is part of the offense (¶ 35.c(2)):
- “Acceptance of food, clothing, shelter, or transportation from the Government constitutes receipt of allowances.” Basic training meals and quarters can satisfy the element.
- What the accused receives while in custody, confinement, arrest, or other restraint pending trial for the fraudulent enlistment is not an allowance.
- Receipt may be proved by circumstantial evidence.
- A member who enlists or accepts an appointment without being regularly separated from a prior one should be charged under Article 104a only if pay or allowances were received under the fraudulent enlistment.
Several misrepresentations used to obtain one enlistment, appointment, or separation are one offense, not several (¶ 35.c(3)).
2 years for enlistment fraud, 5 for separation fraud
From ¶ 35.d:
| Offense | Maximum |
|---|---|
| Fraudulent enlistment or appointment | Dishonorable discharge, forfeiture of all pay and allowances, 2 years |
| Fraudulent separation | Dishonorable discharge, forfeiture of all pay and allowances, 5 years |
The official who lets it happen
The recruiter or official who knowingly enlists, appoints, or separates an ineligible person commits Article 104b. Enlisting in another armed force without disclosing that one has not been regularly separated is also evidence of intent to desert under Article 85. False statements on official forms can separately be false official statements under Article 107.
Sources
- 10 U.S.C. § 904a, Article 104a, Fraudulent enlistment, appointment, or separation (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 35
General information about military law, not legal advice for any individual case.