recent developments in court-martial jurisdiction: the demise of constructive enlistment

• Author: Captain Brett L. Grayson
• Pages: 04

1. INTRODUCTION

   Well.intentioned civilian judges, law enforcement officers, and reform school personnel have, with the occasional cooperation of some recruiters, frequently urged youthful offenders to enlist in the Army in lieu of trial or punishment for civilian crimes or juvenile offenses. These officials generally encourage such offenders to join the Army out of altruistic motives, hoping that military service and discipline will rehabilitateand transform theminto useful and law. abiding membersofthecommunity.Somecommanders.ifnotsym- pathetic with this view, find it difficult to process such personnel for discharge when the basis of their enlistment comes to light. Nonetheless, it is doubtful that the military can either rehabilitate or afford to make the effort to rehabilitate juvenile or youthful offenders where parents and civil authorities have failed.

   One who joins the armed forces as an alternative to civilian confinement neither desires to become aprofesmonal soldier nor really submits himself to the special requirements and standards of con. duct demanded of those who enter the military sewice. Lack of desire, and a consequent lack of motivation, give these ''forced. volunteers" an unusually high potential for difficulties in the ser-vice. These difficulties are often manifested in conflicts with military authority and must be resolved through administrative sandions or through procedures authorized by the Uniform Code of Military Justice. Many of the behavioralirregularitiesexhibitedby "forced volunteers" are also displayed by individuals who are

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   'Theopvlionspresentedm thisamclearethoseof theautharanddonotnscesiariiv repredent the view8 of The Judge Advocate General's School or m i ocher governmental agency**JAGC.U.S Army.ChiefTrialCounsel.2dInfantrgDivinon.CampCas~y.KoreaB A 1968, J D 1974, Laulalana Stsfa University Member of the Bars of the Supreme Covn ofLouisiana and fheU S CourrofMllrtaryAppeals David R. hldler (Yale Law Schml Class of 19771, sumrnei legs1 mtern at theofficeof the StnffJudpe Advocafe, 1st Infanfrv Divaion and fort Rilev Kansas 89JI.Ied~nrheoreoRTnrian ofrhia article

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   unable to satisfactorily perform their military dutjes because same physical, mental or educational disability prohibits them from per. forming the duties expected oftheaverage soldier. Likethelack of motivation, this incapability to satisfactorily meet expected re-quirements causes confusion and frustration which often find their release in conduct detrimental to the requirements of military discipline.

   Fortunately both the Court of Military Appealsand thecourtsof Military Review have in recent years interpreted mditary regulations and administrative policy to insure that the "forced volunteer," with his unusually high potential for exhibiting beha\

   Traditionally, for the military to have courtmartial jurismction over a person, not only must he have been subject to the Uniform Code of Military Justice at the time of the alleged offense. butthere must not have been a valid termination of that statu8 between the commission of the offense and the date charges were preferred.' One of the methods a person can become subject to the Code is by enlistment in theregularforces,arin thereserve forces with a con. current or subsequent call to active duty. Another, but related, method is called "constructive enlistment." If for some reason an enlistment or reenlistment is defective. the military appellate court8 haveoften found animpliedcontract ofenlistmentwhen the enlisted person manifests his intention to be a member of the military by voluntarily performing military duties and accepting military benefits after the defect is cured?

   Recent military appellate cases have sharply altered the law regardingenlistments in violation ofstatuteor regulation, and con-structive enlistments arising from such enlistments. Invokrng military regulations and administrative policies which attempt to discourage the recruitment of persons likely to have trouble in the military, the courts have begun to deny court-martial jurisdiction over those who have been illegally enlisted, dismissing militars. charges against them and returning them to cirilian 1ife.This article will explarn the rationale of these holdings, and will also con. sider their possible effect on Selective Service induction

   11. UNDERAGE (MINORITY) ENLISTMENT Bothmenandwomenwhoareat least 18yearsold'andmeetthe other standards' may enlist. The Secretaries of the respectiveserv. ices may accept enlistments in theregularfarcesofpersonsatleast17 but less than 18 years old, butonly withthe writtencansent of aparentorguardianifoneexists.Apersonlessthan 17yearsold lacks the competence to acquire military status, and consequently cannot became a valid member of the military.'

   Judicial explanationofthesegeneralrules hadcreated arelative. ly settled doctrine of constructiveenlistment which established the limits of courtmartial jurisdiction over those who had entered the service prior to their 18th birthday. For example, where a person entered the service before attaining the age of 17, but had already passed 17 when his deception was brought to the attention of military authorities, he waB held to haveconstructively enlisted by accepting the benefits of the military and voluntarily performing military duties.6 Such entry of a 16.year-old, or entry of a l7.year. old without parental consent, had traditmnally been held to be merely voidable at the option of theGovernment.orattheoptionof a parent or guardian requesting the enlistee's release within 90 days after the enlistment.'Theenlisteeretained military status un.til either option was exercised.x

   Whereaparentorguardian attempted tosecurereleaseofsucha 17.yearuld enlistee from the military. a court-martial lacked jurisdiction to try the soldier for an offense committed after the parent's request had been made.Y However, where the request for release was made after the commission of an offense, It did not defeat court-martial jurisdiction over the soldier.? Even If the

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   enlistee's parent or guardian had not consented to his enlistment, he may have waived his right to demand the minor's release if he w a ~ aware of and has acquiesced in the enlistment.', Similarly, if an individual remains on active duty beyond his 18th birthday despite his failure to obtain parental consent for his minority enhstment, no separationactvan LS tobetakenregardlessofthefact that the enlistment took place in violation of statute.'Z

   The Army Court of Military Review followed these principles in the case ofPnvate John R. Brown Ii Brown enlisted 49days before his 17th birthday. using a forged birth certificate and forging his father's name to the parentalconsent fom. 4 During basic training he lsclosed his minority status to his platoon sergeant and corn. pan? commander, but whether he also disclosed that he lacked parentalconsent andthathewanted togetoutofthemilitarywere disputed at trial. The accused asserted that shortly after begmning advanced individual trarning he had informed his new company commander of his minority enlistment and desire to be released, but this allegation wae denied by that officer.

   The Army Court of Military Review found that the appellant's first company commander and sergeant had been informed of his minority entry, but that the appellant had told them that he had parental consent and that hedeslred toremain in theAmy.It also found that Brawn's father learnedoftheenlistment approxlmately one month before the appellant's 17th birthday, but did nothing to obtain his release

   After making these factual determinations the court held that Brown had constructively enlisted by his conduct and by hls father's knowing acquiescence in hismilitary senice after his 17th birthday 'The fact that the recruiter had failed to follow an Amy regulation In attestmg to the signature of the consenting parent and the failure of the appellant's company commander to take affirmative action were held not to be determmative.1.

   The Court of Military Appeals disagreed. It held that the Army had a duty to act reasonably. and that the inaction of the appellant's cam any commander didnot satisfy thatduty .BItalso declared that if $"ring thepenodrqulred tavenfy amember's tme

   age he attains the ape of 17 and "continues to receive benefits of

   SBTWCB. a constructive enlistment does not arise.",' Hence. the gavemment'a failure to make an inquirywhenplacedonnoticeofa minority enlistment, together with theagent'sfailuretofollow lawful recruiting practices, WBB held to estop the Government from basing its jurisdiction an a constructive enlistment.zl'

   The duty of a unit commander to act upon receiving notice that the enlistment of one of his subordinates is defective is not based solely on the duty of the Government to act reasonably. Upon discovery that an individual's enlistment was"ermneous" because he failed to meet qualifications for enlistment or reenlistment, a unit commander must initiateanaction toobtainauthoritstoretain the member or to discharge or release him from activeduty.il Thecom. manders having discharge authority22 aredirected to order separation in all cases wherethedisqualification isnonwaivable.21 Where thedisqualification is waivable, the discharge authorityistobeex. ercisd in the best interest of the Government 24

   If a person's enlistment is discovered to...