United States v. Burden

23 C.M.A. 510, 1 M.J. 89, 50 C.M.R. 649, 23 USCMA 510, 1975 CMA LEXIS 725

• Court: United States Court of Military Appeals
• Decided: August 1, 1975
• Docket: No. 29,571
• Status: Published

Opinion

OPINION OF THE COURT

Per Curiam:

At the time of appellant’s induction into the armed forces, failure to pass the Armed Forces Qualifications Test coupled with an inability to read and write in the English language was a nonwaiva-ble bar to induction.¹ The uncontested evidence of record indicates that appellant advised an induction official of his reading and writing disability. The official, in turn, directed appellant "to sign the test, and the dude would take care of it.” For substantially the same reasons we enuniciated in United States v Russo, 23 USCMA —, 50 CMR — (Aug. 1, 1975), appellant’s induction was void.² Consequently, the court-martial which tried him lacked jurisdiction.

The decision of the United States Army Court of Military Review is reversed. The findings of guilty and the sentence are set aside, and the charges are ordered dismissed.

1 Paragraph 4-12, Army Regulation 601-270, Personnel Procurement, Armed Forces Examining and Induction Stations (March 18, 1969).

2 Fraudulent induction is a criminal offense under Article 134, Uniform Code of Military Justice, 10 USC § 934, as well as under the Selective Service Act, 50 USC App. § 462 (1968).