This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
Article 104a punishes the person who lies to get in or out of the military. Article 104b (10 U.S.C. § 904b) punishes the person on the other side of the desk, the service member who knowingly processes an enlistment, appointment, or separation they know is prohibited.
The distinction is about role, not about the fraud itself. One article targets the beneficiary. The other targets the enabler. Together, they close a loop: the military can’t function if people lie their way through its gates, and it can’t function if the gatekeepers let them.
Knowledge as the Critical Element
Article 104b has a tight element structure laid out in the MCM 2024 (Part IV, Paragraph 57): any person subject to the UCMJ who effects an enlistment, appointment, or separation of any person who is known to the accused to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order.
Three elements, all of which must be proven beyond a reasonable doubt. First, the accused effected, meaning actually carried out or processed, the enlistment, appointment, or separation. Second, the person being enlisted, appointed, or separated was ineligible because the action was prohibited by law, regulation, or order. Third, the accused knew about the ineligibility at the time.
The knowledge requirement is the critical battleground in every Article 104b prosecution. A recruiter who processes an applicant without knowing about a disqualifying condition hasn’t violated Article 104b. A recruiter who discovers the condition, tells the applicant to omit it from the paperwork, and processes the enlistment anyway has. The prosecution’s burden is proving what the accused knew, and when they knew it. Circumstantial evidence carries this weight in most cases: emails, text messages, witness testimony about conversations, patterns of conduct suggesting the accused routinely processed applicants they knew were ineligible.
“Prohibited by law, regulation, or order” covers a wide range of ineligibility grounds: age requirements under 10 U.S.C. § 505, citizenship requirements, medical fitness standards established by DoD Instruction 6130.03, criminal history disqualifiers, education requirements, prior service restrictions, and any other eligibility criteria established through the military’s regulatory framework. The accused doesn’t need to know the specific regulation they’re violating, they need to know the person is ineligible.
Who This Targets in Practice
The article primarily reaches three categories of military personnel. Recruiters who knowingly enlist unqualified applicants, whether to meet quotas, as personal favors, or for any other reason. Personnel officers who process separations they know are based on false information. And anyone in the administrative chain who knowingly facilitates an enlistment, appointment, or separation that law, regulation, or order prohibits.
The recruiter population is the most common target, and for structural reasons. Recruiting duty involves numerical goals. Meeting those goals affects the recruiter’s career, their evaluations, their assignment options. That pressure can create incentive to cut corners, and the most consequential corner to cut is processing an applicant who does not meet eligibility requirements.
The offense is complete at the moment the enlistment, appointment, or separation is effected with knowledge of ineligibility. The accused doesn’t need to have personally created false documents. They don’t need to have directly instructed the applicant to lie. If they knew the person was ineligible and processed the action anyway, the elements are satisfied.
Punishment and the Article 80 Connection
Maximum punishment: dishonorable discharge, forfeiture of all pay and allowances, and confinement as a court-martial may direct. The open-ended confinement authority gives courts-martial discretion to calibrate the sentence to the severity of the conduct, the number of unlawful enlistments processed, and the consequences that followed.
The lesser included offense is Article 80 (Attempts): an attempted unlawful enlistment that was intercepted before completion. If the accused took substantial steps toward processing an ineligible enlistment but the action was caught before the enlistment was effected, the attempt charge applies. This matters because the Article 80 attempt charge carries its own maximum punishment structure, generally capped at the maximum for the completed offense but subject to the statutory limitations on attempt convictions.
Article 104b also intersects with Article 107 (False Official Statements) when the accused makes false entries in official documents to facilitate the unlawful enlistment. A recruiter who alters paperwork to conceal an applicant’s disqualifier has committed both offenses: the unlawful enlistment under 104b and the false official statement under 107.
A fraud that succeeds always requires two things: someone willing to commit it and someone in a position to stop it who didn’t. Article 104b exists for the second person. The recruiter who looked the other way, the admin clerk who processed what they knew was wrong, the officer who signed off on a separation they knew was prohibited. The statute holds the system’s gatekeepers to the same standard it holds the individuals who deceive them.
Joseph L. Jordan, Attorney at Law: Article 104b punishes the service member on the other side of the desk, the person who knowingly processes an enlistment, appointment, or separation they know is prohibited by law, regulation, or order. Knowledge of the ineligibility at the time is the critical element.
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.