UCMJ Article 104b: Unlawful Enlistment, Appointment, or Separation

Article 104b is aimed at the official on the other side of the desk: the person who effects an enlistment, appointment, or separation of someone the official knows is ineligible for it under a law, regulation, or order. Negligent processing is not enough; the official must have actually known of the ineligibility. The maximum is a dishonorable discharge, forfeiture of all pay and allowances, and 5 years.

Knowingly processing an ineligible person

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.

Source: 10 U.S.C. § 904b.

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 36.b:

1. The accused effected the enlistment, appointment, or separation of the person named.
2. The person was ineligible for it because it was prohibited by law, regulation, or order.
3. The accused knew of the ineligibility at the time.

Before January 1, 2019, this was Article 84. The Military Justice Act of 2016 renumbered it (Pub. L. 114-328, § 5401(1)); Article 84 is now breach of medical quarantine.

Two points of proof

Paragraph 36.c states both directly: 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” of the ineligibility.

• Timing. Eligibility is measured when the action was taken. A prohibition that came into force only afterward does not make the earlier action unlawful under this article.
• Knowledge. The statute requires that the ineligibility be “known to him.” An official who processed an applicant without knowing of a disqualification, even carelessly, does not commit this offense, although careless processing could be dereliction of duty under Article 92.

Maximum punishment: 5 years

Under ¶ 36.d, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

That ceiling is higher than the 2-year maximum the applicant faces for fraudulently obtaining the same enlistment under Article 104a. When both know of the disqualification, each can be charged under their own article for the same enlistment.

Sources

• 10 U.S.C. § 904b, Article 104b, Unlawful enlistment, appointment, or separation (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 36

General information about military law, not legal advice for any individual case.