Article 104a: Fraudulent Enlistment, Appointment, or Separation Under the UCMJ
Article 104a punishes getting into the armed forces, or out of them, by a knowingly false representation or deliberate concealment. Fraudulent enlistment or appointment also requires that the accused received pay or allowances under it. The maximum is a dishonorable discharge, total forfeitures, and 2 years for fraudulent enlistment or appointment, or 5 years for fraudulent separation. Article 43 gives fraudulent enlistment its own time limit: the term of the enlistment or five years, whichever is longer.
The statute
10 U.S.C. § 904a reaches any person who:
- “procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances thereunder”; or
- “procures his own separation from the armed forces by knowingly false representation or deliberate concealment as to his eligibility for that separation.”
The section was Article 83 (10 U.S.C. § 883) until the Military Justice Act of 2016 renumbered it as § 904a, effective January 1, 2019 (Cornell LII source note).
Elements
| Offense | Elements (MCM 2024, Part IV, ¶ 35.b) |
|---|---|
| Fraudulent enlistment or appointment | The accused was enlisted or appointed in an armed force; knowingly misrepresented or deliberately concealed a material fact about qualifications for it; the enlistment or appointment was obtained by that misrepresentation or concealment; and the accused received pay or allowances, or both, under it |
| Fraudulent separation | The accused was separated from an armed force; knowingly misrepresented or deliberately concealed a material fact about eligibility for separation; and the separation was obtained by that misrepresentation or concealment |
What counts as material
A fact is material if it is “any information used by the recruiting, appointing, or separating officer in reaching a decision as to enlistment, appointment, or separation in any particular case, and any information that normally would have been so considered had it been provided to that officer” (¶ 35.c(1)). The second half matters: a fact can be material even though the officer never saw it, if it normally would have been considered.
The statute’s mental-state words limit the offense. A person who did not know of a disqualifying fact did not knowingly misrepresent or deliberately conceal it.
Pay and allowances
The fraudulent enlistment offense is not complete until the accused receives pay or allowances under the enlistment or appointment. The Manual explains (¶ 35.c(2)):
- Accepting food, clothing, shelter, or transportation from the government “constitutes receipt of allowances.”
- What is furnished while the accused is in custody, confinement, arrest, or other restraint pending trial for fraudulent enlistment “is not considered an allowance.”
- Receipt may be proved by circumstantial evidence.
A lie caught before enlistment
The first element is that “the accused was enlisted or appointed.” An applicant whose false statement is discovered before enlistment has not committed Article 104a. Article 2 brings volunteers within the code “from the time of their muster or acceptance into the armed forces” (10 U.S.C. § 802(a)(1)), so an applicant who is not otherwise subject to the UCMJ is not brought within it by applying. A court-martial charge for the false statement itself, such as Article 107, therefore depends on the person being subject to the UCMJ at the time; other federal law may apply outside it.
One offense, not one per lie
“One who procures one’s own enlistment, appointment, or separation by several misrepresentations or concealment as to qualifications for the one enlistment, appointment, or separation so procured, commits only one offense under Article 104a” (¶ 35.c(3)).
Time limit for fraudulent enlistment or appointment
Article 43 does not use a “discovery” rule for this offense. It sets a specific period for charges under § 904a(1) (10 U.S.C. § 843(h)):
- Enlisted member: during the period of the enlistment or five years, whichever is longer.
- Officer: during the period of the appointment or five years, whichever is longer.
The period runs to receipt of sworn charges by an officer exercising summary court-martial jurisdiction over the person. Fraudulent separation under § 904a(2) is not named in § 843(h) and falls under the general five-year rule of § 843(b)(1), subject to the tolling rules in § 843(c)-(d).
Maximum punishment
| Offense | Maximum (¶ 35.d) | Offense category (App. 12C) |
|---|---|---|
| Fraudulent enlistment or appointment | Dishonorable discharge, total forfeitures, 2 years | Category 2 |
| Fraudulent separation | Dishonorable discharge, total forfeitures, 5 years | Category 2 |
The category column matters only for sentencing in cases where all findings of guilty are for offenses committed after December 27, 2023 (Pub. L. 117-81, § 539E(f)).
The person who knowingly helps another enlist, be appointed, or be separated in violation of the rules commits a different offense, Article 104b. A member who enlists elsewhere without being separated from a prior enlistment may also face the evidence rule in Article 85; the Manual says such a member should be charged under Article 104a only if pay or allowances were received under the new enlistment (¶ 35.c(2)).
Sources
- 10 U.S.C. § 904a (Article 104a), with source note: statute text at Cornell LII
- 10 U.S.C. § 843(b)-(d), (h): statute text at Cornell LII
- 10 U.S.C. § 802(a)(1): statute text at Cornell LII
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 35 (Fraudulent enlistment, appointment, or separation); Appendix 12C
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.