United States v. Lenoir

United States Court of Military Appeals

United States v. Lenoir

18 C.M.A. 387, 18 USCMA 387, 40 C.M.R. 99, 1969 CMA LEXIS 789, 1969 WL 6020

CourtUnited States Court of Military Appeals

DecidedJune 13, 1969

DocketNo. 21,706

StatusPublished

Cited by1 cases

This text of 18 C.M.A. 387 (United States v. Lenoir) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Lenoir, 18 C.M.A. 387, 18 USCMA 387, 40 C.M.R. 99, 1969 CMA LEXIS 789, 1969 WL 6020 (cma 1969).

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Opinions

Opinion of the Court

Dakden, Judge:

The accused, with the aid of qualified counsel, negotiated a plea of guilty to absence without leave, desertion with intent to shirk important service, and breaking restriction, violations of Articles 86, 85, and 134, Uniform Code of Military Justice, 10 USC §§ 886, 885, and 934, respectively. In accordance with the terms of the pretrial agreement, the convening authority limited punishment to a bad-conduct discharge, total forfeitures, and confinement at hard labor for fifteen months. A board of review affirmed the findings and sentence as reduced. The sole issue before this Court is whether the court-martial had jurisdiction over the accused.

This question arose because of an unsworn statement in mitigation given to the court by defense counsel in behalf of Lenoir. In his presentation, counsel described the accused as a product of a rejected home life, unwanted by his parents. In short, the accused was turned from the home. According to counsel, on September 2, 1966, the mother enlisted accused in the Marine Corps by the expedient of using a birth certificate belonging to an older brother. At the time of enlistment, the accused was sixteen years of age — he was born December 12, 1949. The offenses here charged thus occurred during his seventeenth and eighteenth years. “National law,” declared counsel, “does not allow a 17-year-old to join the armed forces, even with the consent of his parents.” Under the law applicable to this case, we find his declaration to be in error.

On September 2, 1966, the law allowed the enlistment in the naval service of a male person “at least 14 . . . if he has the consent of his parents or [388]*388guardian.”¹ The requirement of consent was designed to protect the parents, for minors over fourteen had the capacity to contract for naval service.² United States v Reese, 9 USCMA 205, 25 CMR 467; United States v Williams, 302 US 46, 82 L Ed 39, 58 S Ct 81 (1937); United States v Bean, 13 USCMA 203, 32 CMR 203. This statute continued in effect until repealed and superseded by 10 USC § 505, which provides that any male not less than seventeen but under eighteen years of age may enlist with the written consent of his parent or guardian.³ These, too, were the terms of Marine Corps regulations in force at the time of this enlistment.⁴

Whether the later statutory provision or the Marine Corps regulation determines the outcome of this case is settled by this Court’s opinion in United States v Blanton, 7 USCMA 664, 665-666, 23 CMR 128. There, Chief Judge Quinn, speaking for a unanimous Court, said:

“. . . The United States Supreme Court has emphasized that the ‘age at which an infant shall be competent to do any acts or perform any duties, military or civil, depends wholly upon the Legislature.’ Mor-rissey v Perry, 137 US 157, 34 L Ed 644, 11 S Ct 57 (1890). We must, therefore, look to the statutes to determine whether Congress has established a minimum age at which a person is deemed incapable of changing his status to that of a member of the military establishment.” [See also United States v Reese and United States v Williams, both supra.]

Additionally, the Blanton opinion, at page 667, makes it clear that the statutory provision in being at the time of enlistment controls the jurisdictional question.

One portion of appellate defense argument on the asserted lack of jurisdiction in this case includes the contention that accused was forced into the service by the “duress” of his parent. Giving face value to defense counsel’s trial narrative, we find parental consent to the enlistment undeniable. And one probably should not dispute the contention that the accused had an unhappy home life. But there is no evidentiary support for the contention that his enlistment in the Marine Corps was against his will.

Many young men who feel unwanted or rejected at home view the armed forces as an attractive alternative. Indeed, this reaction has occurred so frequently that steps have been taken by service representatives to reduce the possibility of fraudulent enlistments.⁵ The accused, who is now almost twenty years old, did not protest the circumstances of his enlistment before he faced military discipline. The offenses with which he was charged occurred while the accused was assigned to a staging battalion in preparation for Vietnam service. At trial the va[389]*389lidity of his enlistment was never questioned. Despite our compassion for young persons who may have been reared in adverse circumstances, we must base a decision on whether an enlistment was lawful on other grounds.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.

³

10 USC § 505. “Regular components: qualifications, term, grade (a) The Secretary concerned may accept original enlistments in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard, as the case may be, of qualified, effective, and able-bodied persons who are not less than seventeen years of age in the case of male persons and not less than eighteen years of age in the case of female persons, nor more than thirty-five years of age. However, no male person under eighteen years of age, or female person under twenty-one years of age, may be originally enlisted without the written consent of his parent or guardian, if he has a parent or guardian entitled to his custody and control.” Added Public Law 90-235, § 2 (a)(1)(B), January 2, 1968, 81 Stat 754.

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Opinion of the Court

Dakden, Judge:

The accused, with the aid of qualified counsel, negotiated a plea of guilty to absence without leave, desertion with intent to shirk important service, and breaking restriction, violations of Articles 86, 85, and 134, Uniform Code of Military Justice, 10 USC §§ 886, 885, and 934, respectively. In accordance with the terms of the pretrial agreement, the convening authority limited punishment to a bad-conduct discharge, total forfeitures, and confinement at hard labor for fifteen months. A board of review affirmed the findings and sentence as reduced. The sole issue before this Court is whether the court-martial had jurisdiction over the accused.

This question arose because of an unsworn statement in mitigation given to the court by defense counsel in behalf of Lenoir. In his presentation, counsel described the accused as a product of a rejected home life, unwanted by his parents. In short, the accused was turned from the home. According to counsel, on September 2, 1966, the mother enlisted accused in the Marine Corps by the expedient of using a birth certificate belonging to an older brother. At the time of enlistment, the accused was sixteen years of age — he was born December 12, 1949. The offenses here charged thus occurred during his seventeenth and eighteenth years. “National law,” declared counsel, “does not allow a 17-year-old to join the armed forces, even with the consent of his parents.” Under the law applicable to this case, we find his declaration to be in error.

On September 2, 1966, the law allowed the enlistment in the naval service of a male person “at least 14 . . . if he has the consent of his parents or [388]*388guardian.”¹ The requirement of consent was designed to protect the parents, for minors over fourteen had the capacity to contract for naval service.² United States v Reese, 9 USCMA 205, 25 CMR 467; United States v Williams, 302 US 46, 82 L Ed 39, 58 S Ct 81 (1937); United States v Bean, 13 USCMA 203, 32 CMR 203. This statute continued in effect until repealed and superseded by 10 USC § 505, which provides that any male not less than seventeen but under eighteen years of age may enlist with the written consent of his parent or guardian.³ These, too, were the terms of Marine Corps regulations in force at the time of this enlistment.⁴

Whether the later statutory provision or the Marine Corps regulation determines the outcome of this case is settled by this Court’s opinion in United States v Blanton, 7 USCMA 664, 665-666, 23 CMR 128. There, Chief Judge Quinn, speaking for a unanimous Court, said:

“. . . The United States Supreme Court has emphasized that the ‘age at which an infant shall be competent to do any acts or perform any duties, military or civil, depends wholly upon the Legislature.’ Mor-rissey v Perry, 137 US 157, 34 L Ed 644, 11 S Ct 57 (1890). We must, therefore, look to the statutes to determine whether Congress has established a minimum age at which a person is deemed incapable of changing his status to that of a member of the military establishment.” [See also United States v Reese and United States v Williams, both supra.]

Additionally, the Blanton opinion, at page 667, makes it clear that the statutory provision in being at the time of enlistment controls the jurisdictional question.

One portion of appellate defense argument on the asserted lack of jurisdiction in this case includes the contention that accused was forced into the service by the “duress” of his parent. Giving face value to defense counsel’s trial narrative, we find parental consent to the enlistment undeniable. And one probably should not dispute the contention that the accused had an unhappy home life. But there is no evidentiary support for the contention that his enlistment in the Marine Corps was against his will.

Many young men who feel unwanted or rejected at home view the armed forces as an attractive alternative. Indeed, this reaction has occurred so frequently that steps have been taken by service representatives to reduce the possibility of fraudulent enlistments.⁵ The accused, who is now almost twenty years old, did not protest the circumstances of his enlistment before he faced military discipline. The offenses with which he was charged occurred while the accused was assigned to a staging battalion in preparation for Vietnam service. At trial the va[389]*389lidity of his enlistment was never questioned. Despite our compassion for young persons who may have been reared in adverse circumstances, we must base a decision on whether an enlistment was lawful on other grounds.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.

³

10 USC § 505. “Regular components: qualifications, term, grade (a) The Secretary concerned may accept original enlistments in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard, as the case may be, of qualified, effective, and able-bodied persons who are not less than seventeen years of age in the case of male persons and not less than eighteen years of age in the case of female persons, nor more than thirty-five years of age. However, no male person under eighteen years of age, or female person under twenty-one years of age, may be originally enlisted without the written consent of his parent or guardian, if he has a parent or guardian entitled to his custody and control.” Added Public Law 90-235, § 2 (a)(1)(B), January 2, 1968, 81 Stat 754.

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Bluebook (online)

18 C.M.A. 387, 18 USCMA 387, 40 C.M.R. 99, 1969 CMA LEXIS 789, 1969 WL 6020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lenoir-cma-1969.

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