The Enlistment Contract: A Uniform Approach

• Author: Captain David A Schlueter
• Pages: 01

I. INTRODUCTION

I, _____. do demnly wear (or affirm) that I iiillsupport and defend the Constitution of the Uniteri States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; and that I will obeythe arclers of the President of the United Stater and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Juence Sohelp me God.'

The enlistee completes the oath and a Toice ptoudll- announces: "You're in the Army nom!" Despite the confidence with iihieh this announcement is made. the United States Court of Xilitar> Appeals has, in a aeries of cast doubt on the ralidit? ai huntlreilr of enliarment~.~

Those opinions highiight the continuing legal problems aurrouniling enlistments. There is B nbut little uniformity. There are many judopinions coiering the topic, but little statuton guidance.

he Judge adiocafe

1971, Bailor Lari

The topic of enli%tmenti. arises onh such regulant) because the conceptual attributes of enlistment determine the iubstance of the soldier-srate relationship. The nature, validity. ani1 consequences of the enlistment contract touch almost every facet of miiitary including such areas as court-martial jurisdiction, nght to pa) charges. anti mirement benefits Paiticularly troublesomefact that the rules ahich determine the ralidit? of ai enli contract in one area might be mapplicable in another are

military courts' perspective of the enlistment are mar

The mainstream of the .imenean judicial system. ho\rei.ei. has shown an increasing tendency to label all legal relationship- a\ "COD

traetual." For better or ivor~e.the soldier-state relationship has not

been immune from this tendency to characterize ieiitionahms ar binding contracts. agreements. compacta, and covenant;

That has prompted the difference in perspective'! There aye no standard ane\iers but three factor- seem :o lie at the root of the problem:a Lack of a conelie ani1 uniform ilefimtmr of the term

"enlistment." Does it create a cont~actual relationship or a status or both" Or neither? b. Diverse opinions aa to what rules 01' bodies of laa apply to the soldier-state relationship.

3. The role of public policy in determining the validit) of the enlistment agreement and the resulting status.

   This article examines the diverse viei\s, the resulting problems, and the feasibilitj- of a uniform approach to enlistments The inquiry begins irith an historical anal! ais of the soldier-state relationship.

   11. HISTORICAL ROOTS OF THE

   SOLDIER-STATE RELATIOSSHIPThe concept of the soldier-state relationshipdrane from centuilies of tradition. and althoughteristici hare changed through the years, thehas remained unchanged The sovereign's poaer to raise armed forces IS paramount and all citizens may be called upon to serve inthose forces.

   Feudal armies a-ere raised by lorrls aha piedged their allegiance to the monarch for a ~pec~fiedperiod in return for lands, honors, and reciprocal protection Subjects of the lard oned allegiance only to him and performer1 militar? senices for him. FVhen their apecified period of service \\ab completed they returned to thew farms ani families

   The feudal army model remained until the advent of what we might call international wars For example, in the Hundred Pears ITar. Charlea V of France hired a professional army of infanti.)., cai.air>-, and artillery. These banila of fighting men n.orked under a captain or colonel like workmen under a contractor They served in return for wages. and when the monq ran out, the soldiers left their poits.'

   The early British armies ranrd httle from the Fi.ei;ch model. One

   F STERI THF C i r m h ARMY 55 ,105:~"I.' d' 56

   ional armies bepn with the reign ofessiunal armies which a w e paid tly to him. He supplier1 them with loyalty from both officers and pri-rate soldiers. The soldiers iiere recruited by enticing them nith a bounty, and their service consisted largely of standmp ready to tight for the king.5

   writer suggests that the roots of the imeiican mihtar) tradition trace back to the .&size of dims promulgated by King Henry II.# The joldier's pay and allegiance were linked directly to the reigning monarch. During periods of national stabiht), recruiting practicesand teims of senice remamed unchanged Hoe-ever, during permrlsof unrest. the monarch wad at hbertv to imoress raerant- into ~eix-~

   . . I

   ice and increase the punishments for misconduct.'

   It was this system of direct allegiance that erentualli found ita bray into the iieu umld Instead of rel)ing heavily on the profe5-sional arm?. the early American colonie- looked almost exclusivelvto the militia, farmers and townspeople ready to rake up ami. Hoaerer, the militia proieil to be of limited value when their o ~ i n

   During the American Rerolutmn. the colonial plan of ilepeniling nn the reeulai. enlistees n a b barel, aileouate in lieht of the recruit^

   him to propose the unpopular concept of iompulrary *ervice.l" Thu;. br the time of the Reroiutian Amencan armed force; iwre

   I

   19ii1 THE EXLISTPENT CONTRACT

   composed of a \-olunteer regular army augmented by conscripts and a strong militia.

   With some minor adjustments, this formula of a atanding army serving with a strong militia has prevailed Likewise, the American arm)- has been composed of those nha have volunteered their serv-ices and those who, through legislative process, have been mducted into service. Even aith the suspension of conscription there continues to be a clasi of soldier that enters the Army to aroid what may be perceived as a less desirable alternative Despite the manner through ahieh the soldier enters the armed forces, the raldier-state relationship la 110 longer Indirect in nature (soldier-lord-king); but rather direct (soldier-state). Soldiers one allegiance directl?- to the state

   As the relationship between the soldier and the state has changed, so has the judicial and administrative treatment of that relationship. As the relationship has gained sophistication, new legal questions concerning pay, recruiting practices, and terms of service hare ansen. Defining the relationship and assessing the legal basis of the relationship hare not been easy tasks. Courts and administrative systems have struggled xith the issue and hare in some cases reached directly opposite results.

   1. EARLY JrDICIAL VIEW'S OF THE E.\ZIST.MEST

      The earl! enlistment cases generally dealt with two yecurring problem areas: the nature of the enlistment contract and the effect of statutory and regulatory contrala on its execution. Lkited Stotrs

      Cattingham had immigrated from Ireland and after reenlisting in the Arm?. claimed to be an alien. ,not having taken any steps to become a naturalized citizen. The statute which set forth the qual-ifications for enlistment spoke in term? of enlistment of "citi-

      MILIT.iRY LAW REVIEW [VOL. 77 Zen5 " ' j The Supreme Court of Virginia rejected the soldier i arguments that the statute prahibian! such enlistment irould be unltract. the enlktmmt war void bingredient of mutuality The eoucould either enforce the soldier'. agreement lor contract) to sei., e or summanly release him from his obligation. with or iiithout cauw The aoldier heid no such advantage. Despite thi* lack of mutualit?. the enlirtment could not be vo~leii. because contracts of enlistment ~oultl not be treated as typical contrmts.

      The quahficatianr of age. height. and citizenship aere. aicoiilm~ to the court, intended for the protectmn of the If the recruit were a minor, he bias protected from yojudgment by the requirement that he obtain COIIE

      The court asumeil that an adult recrmt uaulil babihtj, and, if he enlisted, he nauld be guilt! of either baud ui' collusion with the recruiter. Although eitherpuniShed, it was the government's pierogatire :oidate the enl~atment.~~

      ernment 'auld ilalle

      direherre of hir duties* Is

      Thia construction af the Statute was ''in the true spirit of the law: while the opposite would open the door wirlei) to the vilest frauds upon the public Cotfixgha,ii did not stand alone: how ever, it provided a good summarization of the concepts employed by early American courts in dealing with enlistment problems."

      Equally troublesome to the courts was the problem of determining the validit? af minority enlistments. The presence of minors in the armed services was commonplace, and to complicate matters, the age requirements fluctuated ivith the alternating states of war and mace Three %ears after deeidine that an alien could be enlisted, despite cangrraaional language to the contrary, the Supreme Court of Virginia in L'zifad Stntes i. Blnkeney'B once again dealt with the enlistment This time it turned its attention to the enlist-nieiit of a minor.

      Blakeney. who was between the ages of nineteen and tnenty years, had enlisted with a company of Virginia volunteers and iiae subsequently mustered into service with the United States when the war vith Mexico began. The .4ct of March 1801,18 which had fixed the peacetime establishment of the United States Arm?, re-quired enlistees between the ages of eighteen and taent! years to obtain the consent of their parents 80consent had been given in this case. At the time of the enlistment, however, Congress. by the Act of 1816,20had authorized the President to call up to 50,000 rolunteere without stating an? qualifications concerning the age of the troops. Blakenq was among those answering the call. The treat^ ment of the problem by the majority and dissenting opinions reveals a great deal about the prevailing philosophies concerning the soldier-state relationship (rpecificallg. the enlistment) in the first half of the nineteenth centur3-

      The majorit? opimon reluctantly iecogmzerl the soldier-state rela-tionship as contractual zL and stressed that the requirement of ion-sent found in the Act of 1802 must be interpreted in light of a nation at ~ a r .

      minor to serve the State \vas binding "whenever .uch an agreement is not positively forbidden by the...