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FRAUDULENT ENLISTMENT, APPOINTMENT, AND SEPARATION

§ 5. Misrepresentation or Concealment.

§ 19. Pleas and Defenses.

§ 23. Evidence, Weight and Sufficiency.

§ 5. Misrepresentation or Concealment

§ 5.1. Generally.

When an individual is processed for enlistment or induction certain forms must be accomplished which include questions relative to the varied forms of physical ailment, medical treatment and/or hospitalization of the indiviudal in question, such forms indicating that the individual has read the answers given by him, that they are the truth, and that he understands that any false statements might result in trial by court-martial for fraudulent enlistment. As a result of determination that certain statements made during induction or enlistment are false, some individuals are discharged under AR 615-366 for fraudulent enlistment, and in most instances separation procedures are commenced after the individual has signed a statement, after due warning as to his rights under UCMJ, Art 31, to the effect that he had made a false statement at the time of induction or enlistment, or that he had failed to disclose a certain condition which if known at the time would have served as a bar to his induction or enlistment. The question arose as to whether sec 105, Servicemen's Readjustment Act of 1944 (58 Stat 285, 38 USC 693e, ML 1949, sec 1164-3) precludes the Department of the Army from discharging an individual for fraudulent enlistment where the basis for such discharge is a statement signed by him to the effect that, during his processing for induction or enlistment, he had made a false written statement concerning his physical condition. Sec 105, supra, provides: "No person in the armed forces shall be required to sign a statement of any nature relating to the origin, incurrence, or aggravation of any disease or injury he may have, and any such statement he may have against his own interest signed at that time, shall be null and void and of no force and effect." Held: Section 105, supra, does not preclude the Department of the Army from discharging such an individual. The statement in question is made prior to the time the individual concerned becomes a member of the Army and, since the protection afforded by sec 105, supra, extends only to a "person in the armed forces," it would seem that such section is not applicable. However, the language contained in such section is otherwise broad enough to cover the type of statement involved. The legislative history of the section in question indicates that the practice of obtaining statements from service personnel concerning their physical condition as a condition of their separation from the service was strongly condemned (see Hearings before the House Committee on World War Veterans' Legislation on HR 3917 and S 1767, 78th Cong, 2d sess, pp 6-8, 33-35, 97, 184

189, 199-202 (1944); see also Hearings before the Subcommittee of the Senate Committee on Finance on S 1617, 78th Cong, 2d sess, pp 11-12, 32 (1944)). Section 105, supra, was included in the statute in order to prevent the taking of statements as to physical condition at the time of, and as a condition of, discharge, and to insure that, in the event any such statement were taken, it would be null and void, and could not be used against the person concerned when the Veterans' Administration considered his claim for compensation for a serviceincurred physical disability (see SPJGA 1945/10356, 14 Oct 1945; JAGA 1951/2880, 20 Apr 1951). Under the circumstances, sec 105, supra, should be construed to be applicable only to written statements "relating to the origin, incurrence, or aggravation of any disease or injury" made at time of discharge, and not those made at time of induction or enlistment. Thus, such statements, even if found to be false, are not within the contemplation of sec 105, supra, and therefore may be used by the Department of the Army as the basis for the discharge of such person for fraudulent enlistment. (See CSJAGA 1948/8548, 4 Mar 1949; CSJAGA 1949/1960, 15 Mar 1949; JAGA 1950/5437, 13 Sep 1950; JAGA 1951/2880, 20 Apr 1951.) JAGA 1953/2414. 10 March 1953.

§ 19. Pleas and Defenses

§ 19.5. Statute of limitations.

The accused was charged with fraudulent enlistment in the Army on 20 February 1951. Charges were not preferred until March, 1953, more than two years after commission of the offense (see UCMJ, Art 43(c)).

Held that:

the provision of UCMJ, Art 43 (f), suspending the statute of limitations "when the United States is at war" as to any offense under the Code "involving fraud or attempted fraud" against the United States, was intended to apply only to crimes where the fraud is of a pecuniary nature or at least of a nature concerning property. (Citing Bridges v. U. S., 346 US 209, 97 L ed 1557, 73 S Ct 1055; U. S. v. Grainger, 346 US 235, 97 L ed 1575, 73 S Ct 1031.)

- since the offense of fraudulent enlistment requires as an element of proof the establishment of pecuniary loss to the United States in the form of pay and allowances furnished to the enlistee by reason of his misrepresentations, such offense falls within the content of the meaning attaching to the term, "fraud," as used in Art 43 (f).

- frauds against the United States, including fraudulent enlistment, committed during the Korean conflict were committed when the United States was "at war" as that term is used in UCMJ, Art 43 (f), regardless of whether the offense was committed in Korea, the continental United States, or elsewhere, and regardless of whether or not there was a formal declaration of war. [Quinn, C. J., dissented.] United States v. Taylor (No. 3812), 4 USCMA 232, 15 CMR 232, affirming CM 364398, Taylor, 11 CMR 428.

§ 23. Evidence, Weight and Sufficiency

§ 23.11. False representation as to number of dependents.

The accused was convicted of fraudulent enlistment by means of false representations that he had only one dependent when in fact he had two. The enlistment of the accused was established by a certified copy of his original enlistment records. Testimony of a

sergeant who had enlisted an airman bearing the same name as that of the accused established that it was the customary procedure at the time of the accused's enlistment to read all pertinent regulations to prospective enlistees. One of the regulations provided that applicants with one dependent could be enlisted in any grade but that applicants with two dependents could be enlisted only if qualified in the grade of E-4 or higher. The accused was enlisted in the grade of basic airman. Copies of two dependency certificates filed by the accused were received in evidence establishing that the accused at the time of filing of each certificate claimed dependency benefits for his wife and a minor child. The date of the child's birth was shown on each certificate to be approximately one year prior to the accused's enlistment. A certified copy of a birth certificate was received in evidence reflecting the name, date, place of birth and names of parents of a certain child. The facts thus reflected corresponded to the same facts as shown in the accused's dependency certificates with the exception that the name of the father was shown as Otis B. (only) B. while the accused's name was Odus R. E. B. The birth certificate showed the child was born on 14 October 1951. The accused enlisted on 31 October 1952 and on 6 November 1952 executed the first of two dependency certificates in which he claimed dependency benefits for a wife and minor child. Held: Failure upon the part of the accused to list the child as a dependent in the original document of enlistment constitutes misrepresentation of a material fact which would disqualify him for enlistment, in the absence of a waiver or other appropriate authorization. In the absence, therefore, of countervailing evidence, there is no valid reason why the conviction should be disturbed. Dependency certificates amount to incriminatory admissions (U. S. v. Patrick (No. 799), 2 USCMA 189, 7 CMR 65; ACM 6105, Andrews, 9 CMR 667) but will not, standing alone, sustain the findings of guilty. However, the birth certificates supply the independent evidence necessary to. corroborate the admissions contained in the dependency certificates. The certified copy of the birth certificate was properly received in evidence under the official records exception to the hearsay rule (MCM, 1951, par 144b), since records of birth, when kept as required by law, are recognized public records and admissible in evidence (20 Am Jur, Evidence sec 1030; Abbott v. Prudential Ins. Co., 89 NH 149, 195 A 413; Vol 3, Wigmore on Evidence, 3d Ed secs 1642-1644; Duncan v. U. S., 68 F2d 136; State v. Worden, 331 Mo 566, 56 SW2d 595); and it furnishes sufficient corroboration for the admissions contained in the dependency certificates despite the slight dissimilarity of the name of the father since aside from the consideration that this appears to be an appropriate setting for application of the principle of idem sonans (Duncan v. U. S., 168 F2d 136, Wharton's

Criminal Evidence, 11th ed, sec 1047), the similarity between the contents of the dependency certificates on the one hand and the birth certificate on the other is overwhelming in that the name of the mother appears the same, and likewise the name of the child and the date of birth correspond. Also, the address of the parents was listed as a North Carolina address and the accused enlisted from North Carolina. (Citing U. S. v. Patrick (No. 799), 2 USCMA 189, 7 CMR 65; ACM 6105, Andrews, 9 CMR 667; distinguishing Hammerstein v. Hammerstein, 134 NYS 473, and Bilcovi v. Loeb, 141 NYS 271.)

Held also: The evidence is sufficient to support a conclusion that the child was probably alive on the date of the offense. In claiming dependency benefits as of 6 November 1952, the accused represented that the child was alive on that date and by necessary implication that it was alive on 31 October. Such representation is an admission which must be corroborated, however, such corroboration need not prove the ultimate fact, but need only show that the child was probably alive on the date of the offense. For this purpose the birth certificate showing the child to have been alive one year previously is sufficient. (Citing U. S. v. Patrick (No. 799). 2 USCMA 189, 7 CMR 65.) ACM 7685, Brockwell (1954) 14 CMR 653.

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The plaintiff commenced an action in the United States District Court to recover the sum of $10,000 which he alleged the government was obligated to pay under the terms of the Servicemen's Indemnity Act of 1951, 38 USCA § 851 et seq. It was alleged that the action was commenced for the reason that the plaintiff's claim for the $10,000 was rejected by the Veterans' Administration. Held: The court is without jurisdiction to review the decision of the Administrator of Veterans' Affairs or to grant the relief sought. (Citing 38 USCA secs 11a-2 and 858.) Judicial review of the decisions of the Administrator is prohibited except as to disagreements relative to claims arising under contract, premium-paying insurance. The claim herein is not a contract but is in fact a Congressional gratuity. Brewer v. United States, 117 F Supp 842.

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