§ Article 104a : Fraudulent Enlistment, Appointment, or Separation

Article 104a of the UCMJ (10 U.S.C. § 904a) punishes procuring one’s own enlistment, appointment, or separation from the armed forces through knowingly false representation or deliberate concealment about eligibility or qualifications.

Who It Applies To

Any person who procures their own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to their qualifications, and receives pay or allowances as a result; or who procures their own separation from the armed forces by knowingly false representation or deliberate concealment as to their eligibility for that separation.

What It Covers

Fraudulent enlistment or appointment

1. The accused was enlisted or appointed in an armed force.
2. The accused knowingly misrepresented or deliberately concealed a certain material fact or facts about the accused’s qualifications for the enlistment or appointment.
3. The enlistment or appointment was obtained or procured by that knowingly false representation or deliberate concealment.
4. Under that enlistment or appointment, the accused received pay or allowances, or both.

Fraudulent separation

1. The accused was separated from an armed force.
2. The accused knowingly misrepresented or deliberately concealed a certain material fact or facts about the accused’s eligibility for separation.
3. The separation was obtained or procured by that knowingly false representation or deliberate concealment.

Key rules

• Material matters include any information the recruiting, appointing, or separating officer used in reaching a decision, and any information that officer would normally have considered had it been provided.
• Accepting food, clothing, shelter, or transportation from the Government is receipt of allowances. What is furnished to the accused while in custody, confinement, arrest, or other restraint pending trial for the offense is not an allowance.
• A member who enlists or accepts an appointment without being regularly separated from a prior enlistment or appointment should be charged under Article 104a only if the member received pay or allowances under the fraudulent enlistment or appointment.
• Several misrepresentations or concealments used to procure a single enlistment, appointment, or separation are one offense.

Maximum Punishment

Maximum authorized punishment.

• Fraudulent enlistment or appointment: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
• Fraudulent separation: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

Sentencing parameters. Both offenses are Category 2 (1–36 months). For fraudulent enlistment or appointment, the recommended maximum is 24 months, the authorized maximum.

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 104a addresses a person who fraudulently procures their own enlistment, appointment, or separation. Article 104b addresses a person who knowingly effects the enlistment, appointment, or separation of someone else who is ineligible. A false statement made during the process may also be addressed by Article 107.

What the Provision Does

Article 104a applies to a person who obtains their own enlistment, appointment, or separation by a knowingly false representation or deliberate concealment about eligibility or qualifications. The enlistment and appointment forms also require that the person received pay or allowances, and the maximum confinement is higher for a fraudulent separation than for a fraudulent enlistment or appointment.

History

Fraudulent enlistment, appointment, or separation appeared as Article 83 of the original 1950 UCMJ, codified at 10 U.S.C. § 883 in 1956. The Military Justice Act of 2016 (Pub. L. 114-328) renumbered it as Article 104a, effective January 1, 2019; the Article 83 designation now covers malingering.

Sources

• 10 U.S.C. § 904a (Article 104a, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 35
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C