Enlistment: A Contract that Changes “Status.”
- Valid Enlistments. In re Grimley , 137 U.S. 147 (1890) (finding valid enlistment, for jurisdictional purposes, where recruit lied about not being over the statutory maximum age of 35).
- A valid contract creates military status, and a breach of the contract does not affect status.
- Incapacity to contract and contracting involuntarily may prevent the existence of status.
- Void Enlistments—No Status Due to Statutory Disqualifications.
Regulatory Enlistment Criteria. Army Regulation 601-210
- No prior service applicants – Chapter 2.
- Prior service applicants – Chapter 3.
- Old rule: Regulations on enlistment qualifications are not only for the benefit of theservice but also for the benefit of the applicant. Where recruiter misconduct amounts to a violation of Article 84, the resulting enlistment is void as contrary to public policy. United States v. Russo , 1 M.J. 134 (C.M.A. 1975) (holding enlistment void, where accused suffered from dyslexia which severely impaired his ability to read and recruiter gave list of answers to qualification test).
- Russo created a prophylactic rule that voided all enlistment contracts where recruitermisconduct existed. This resulted in numerous courts-martial where the accused defended by alleging the government had no jurisdiction over him because of recruiter misconduct. Congress responded by amending Article 2 to establish “constructive enlistments,” in order to overrule Russo ( see below); see United States v. Quintal , 10 M.J. 532(A.C.M.R. 1980); United States v. Gibson , 43 M.J. 343, 346 n.3 (C.A.A.F. 1995).
- United States v. Catlow , 48 C.M.R. 758 (C.M.A. 1974) (enlistment was involuntaryand void at its inception, where accused entered into it after a civilian judge told him his only choice was between 5 years in jail or enlistment in the Army for 3 years).
- United States v. Lightfoot , 4 M.J. 262 (C.M.A. 1974) (enlistment was voluntary,where accused, on advice of counsel, proposed military service as an alternative to confinement and the recruiter did not know that the criminal proceedings had been dismissed against the accused contingent on his entrance into the military). See also , United States v. Ghiglieri , 25 M.J. 687 (A.C.M.R. 1987).
The Codification of In Re Grimley
- In 1979, Article 2 was amended to read as follows:“(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment. (c) Notwithstanding any other provision of law, a person serving with an armed force who—
- submitted voluntarily to military authority;
- met the mental competence and minimum age qualifications of sections 504 and 505 of his title at the time of voluntary submission to military authority;
- received military pay or allowances; and
- performed military duties; is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.”
- Recruiter misconduct or intoxication at the time of the oath can be cured by“constructive enlistment.” United States v. Hirsch , 26 M.J. 800 (A.C.M.R. 1988).
- “Constructive enlistment” applies to reserve officer on active duty training (ADT). United States v. Ernest , 32 M.J. 135 (C.M.A. 1991).
- A court-martial is competent to determine whether an enlistment was voidablebecause of misrepresentation. Woodrick v. Divich , 24 M.J. 147 (C.M.A. 1987). However, since a federal court habeas corpus proceeding was pending, the “demands of comity” supported abating court-martial proceedings until the proceedings in the District Court were resolved.