Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.
Q. A few years ago I lied to get into the military. If the military somehow uncovers my lie, could I get in trouble despite all the time between now and then?
A. The government tends to pick up on a service member’s false representations or deliberate concealments made during the enlistment process after he or she gets in trouble for an unrelated offense. As such, a service member’s ability to avoid a court-martial conviction on the charge of fraudulent enlistment in violation of Article 83 of the Uniform Code of Military Justice usually depends on how long he or she managed to stay out of trouble after enlisting.
Under Article 83, fraudulent enlistment, much like most other UCMJ offenses, cannot be tried at court martial if this charge came more than five years after the offense was committed. So, service members who enlisted (or re-enlisted) at least five years earlier usually do not have to worry about their enlistment lies resulting in an Article 83 conviction, which carries a maximum penalty of dishonorable discharge, total forfeitures and two years of confinement, according to the Manual for Courts-Martial. That does not mean enlistment lies cannot haunt them past this five-year statute of limitations. For example, lack of candor and dishonesty could raise personal conduct concerns that result in the denial or revocation of a security clearance, according to the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.
If a service member is charged with fraudulent enlistment during his or her fifth year of service, it is crucial to determine exactly when he or she enlisted. Article 83 applies to service members who manage to join the military by knowingly making false representations about or deliberately concealing their enlistment qualifications. Additionally, and perhaps most importantly, the lying service member must also have received pay and allowances. As the U.S. Air Force Court of Criminal Appeals said in U.S. v. Candice N. Cimball Sharpton (2013), “a person does not complete the crime of fraudulent enlistment until that person accepts pay or allowances after becoming subject to the UCMJ, or receives pay or allowances sufficient to cause him or her to become subject to the UCMJ.”
Cimball Sharpton involved an Air Force senior airman who entered active duty on May 2, 2006. She argued that the five-year statute of limitations on her fraudulent enlistment charge had expired before her charges were properly forwarded to her squadron commander on April 11, 2011. Her argument was based on the fact that she had received shelter and clothing from the military before she entered active duty on May 2, 2006. She claimed that the military paid for her stay at a hotel on February 6, 2006 while she was being processed at a Military Entrance Processing Station and on March 26, 2006 her recruiter gave her a sweatshirt. Therefore, this period should have marked the point at in time when she “enlisted” for purposes of an Article 83 violation.
These two earlier dates fell outside the five-year statute of limitations. However, the court found there was no evidence the military provided the hotel or other shelter, and further that the receipt of the sweatshirt “did not constitute sufficient ‘allowances’ such as to complete the offense of fraudulent enlistment.” The court said the senior airman’s fraudulent enlistment began when she reported for active duty on May 2, 2006, placing the offense within the five-year statute of limitations.
Service members charged with fraudulent enlistment should immediately contact a military law attorney. Depending on the circumstances, an attorney could show the service member did not know he or she made false representations, did not deliberately conceal information or that the statute of limitations had expired.
Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com.
The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.
