• The Army National Guard, like all other branches of the U.S. military, operates by a set of laws, regulations and rules that are completely separate from their civilian counterparts. As such, if you or someone you know in the Guard is facing charges of fraudulent enlistment, you need to know the rules and procedures specific to this branch of the military in order to navigate your way out of a discharge.
  
  

Definitions

• Under the Uniform Code of Military Justice, a person who has fraudulently enlisted in any branch of the military is a 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," if the information omitted would have resulted in the applicant's rejection.
  
  This offense may be met with administrative separation from the military, court marshal, or both.
  
  According to Army National Guard regulations for enlisted administrative separations, false representations or concealment of facts to gain enlistment (or reenlistment) include: concealment of ineligibility to reenlist due to past separation, concealment of citizenship status by an alien, concealment of a criminal record (including juvenile record), concealment of a medical defect, concealment of a prior absent without leave (AWOL) or desertion record, and misrepresentation of status of custody and intent regarding children which are under the legal guardianship of enlistee.
  
  

Protocol for Establishing Fraud

• Under Army regulations, a soldier's commander must determine whether the soldier's enlistment was indeed fraudulent by testing the case through two criteria before passing the case up the chain of command for administrative separation or court marshal.
  
  First, the commanding officer needs to determine whether the concealed information is information that would have resulted in rejection if disclosed. In some cases, a prospective soldier may receive a waiver from the National Guard for items that could result in rejection, such as past criminal convictions. However, if the investigating commanding officer finds that the concealed information, regardless of whether it was an item for which a waiver could have been obtained, meets the criteria for rejection, the soldier's enlistment will be considered fraudulent.
  
  The second criterion a potential case of fraudulent enlistment needs to meet is that the disqualifying information is indeed true. An example of this given by the National Guard Enlisted Administrative Separation manual goes like this: If a soldier claims that he was convicted of burglary and had been placed on probation, the investigating officer needs to confirm that the soldier had in fact been convicted of burglary and not an offense such as trespassing which is a lesser offense which does not result in rejection.
  
  

Recourse

• A soldier facing administrative separation may seek a waiver for whatever concealed information is the root of the fraudulent enlistment charge under certain circumstances.
  
  According to separation guidelines, if the sole reason for separation is fraudulent enlistment, the soldier may not suspend the separation process. However, if the fraudulent enlistment charge is accompanied by other grounds for separation, the soldier may be retained, and separation suspended, if her commanding officer grants a waiver for the fraudulent enlistment and if the defect (medical or legal) is no longer present. There is no recourse or waiver given if it is determined that the information withheld at enlistment pertains to homosexual activity.