Opinion of the Court
ROBERT E. Quinn, Chief Judge:
In a common trial with two other prisoners in the post stockade, the accused entered a plea of guilty and was convicted of willful disobedience of a lawful order by a Captain P. G. Kelly “to go to work.” No evidence was offered in mitigation and he was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for five years. The convening authority reduced the confinement to two years but otherwise affirmed the sentence. A board of review also affirmed the conviction. Now the accused contends the court-martial did not have jurisdiction over him.
The claim of lack of jurisdiction is based on the accused’s age. See United States v Blanton, 7 USCMA 664, 23 CMR 128. The accused alleges, and the Government does not deny, that he was born on April 1, 1939. On October 21, 1955, while still only sixteen years of age, he enlisted in the Army using his brother’s name and school record. His parents had no knowledge of the enlistment, but he wrote to his mother and told her of it. That December, while home on Christmas leave, he discussed the matter with his mother. He promised her he would talk to his company commander about “straightening out the matter and the possibility of getting a discharge from the Army.” Sometime in January or February 1956, he did consult his commander in regard to the matter. The substance of their discussion is in conflict.
According to the company commander, Captain Chase, he saw the accused during “commanders’ time.” The only “problem” he considered with the accused was the use by the accused of his brother’s name. He advised the accused he would have to obtain a birth certificate “stating his true name.” He did not tell the accused he would communicate with his parents with the view to obtaining the accused’s discharge from the Army. He said he did not remember any mention of the accused’s minority and he did not “believe” the matter was discussed. The accused contends the commander explained to him “about a Minority Discharge” and informed him that if his parents consented he could remain in the Army. Allegedly, he told Captain Chase that “if the records could not be corrected or straightened out then I wanted to get out of the Army.”
Shortly after the meeting with his commander, the accused received from his mother an application for a birth certificate. He took it to his company commander and signed it before him; the Captain signed as a witness. The accused left the signed application with the Captain. About a month later his mother wrote to him to advise that the application had been returned to her because his signature had not been notarized. The accused did not say anything about this matter to his commander. On May 26th or 27th, almost two months after he had turned seventeen, the accused went home on a three-day pass. He missed his return ride to camp so he went back home. According to the record of previous con[687]*687victions he was an unauthorized absentee from May 31 to June 24. He was arrested by the sheriff and turned over to the military. He was tried by a special court-martial and sentenced to partial forfeitures and confinement at hard labor for three months. On October 27, he was released and transferred from Fort Knox, Kentucky, to Fort Meade, Maryland.
On November 4, the accused again went absent without leave. He contends that the offense “was directly attributed to the fact” that no one had made “any efforts to get me out of the Army on a Minority Discharge.” He went home he says “for the sole purpose of getting my birth certificate.” At an unspecified date, he and his father allegedly went to Nashville and obtained the certificate. On January 22, 1957, two and one-half months after his initial unauthorized absence, he was apprehended again by civilian authorities and returned to military control.
Eight days after the accused’s apprehension, the accused’s mother wrote to the military authorities. She referred to the accused’s enlistment at the age of sixteen and said that the accused “still seems just a kid.” She hoped that she could “have him home like he should be.” The letter was addressed to Fort Meade. It was forwarded from there to Fort McPherson, Georgia, to which the accused had been transferred.
In the meantime, the accused was tried on February 13 by a special court-martial for his unauthorized absence and sentenced to partial forfeitures and confinement at hard labor for six months. The next day he committed the present offense. On March 1, the Personnel Officer at Fort McPherson wrote to the accused’s mother referring to her letter of January 30th “concerning a Minority Discharge.” He told her the accused had been interviewed regarding his enlistment and “to further process . . . [him] for a possible Minority Discharge it will be necessary” to obtain a record of birth of the accused’s brother and an affidavit from her regarding the “present status” of the two boys. On March 8, 1957, Mrs. Overton wrote to the Personnel Officer giving him the information he desired, together with other details of identification of her sons. On March 14, she again wrote to the Personnel Officer. In her letter she included a birth certificate from her son Reece. She pointed out that she had “been at this since early last summer” and she would be “very thankful” if he could “help any way you can.” She also asked whether she had to see a lawyer and requested that if she had to do “anything else or any different” would he “please let . . . [her] no [sic].”
On April 1, the accused came on for trial on the instant charge and pleaded guilty. Apparently, in response to a request from appellate defense counsel, Mrs. Overton has submitted a letter dated August 21, 1957. She attempts to review the matter “from the start” but the details are scant. She says that when the accused came home on leave she asked him “how he got into the Army”; he said that “he just joined.” After he “moved” to Fort Knox he came in on a week-end and she “begged him to tell” her about it. She talked to him “a good deal” about it. Then she heard from Captain Chase and the accused. She went to the draft board and talked to a man there. He told her to “just . . . write them myself”; there was “nothing to it.” She went to the recruiting office and someone there gave her the same advice. “Just this summer [1957] when he [the accused] was sent to Penn”1 she went back to the draft board and was advised by a woman there that the matter should have been “fixed . . . up” earlier. She filled out some papers. The letters ends as follows: “I sure would be thankful to you, if you could help my son an[d] get his name straightened out.”
Under present law a person under the age of seventeen years is incapable of entering into the enlistment contract. If enlistment is effected, the enlistment is void and the enlistee is not [688]*688subject to trial by court-martial under the Uniform Code of Military Justice. United States v Blanton, supra. On that much the parties are in full agreement. They disagree, however, on the nature and the legal consequences of the evidence after the accused attained his seventeenth birthday. The Government contends that when the accused became seventeen years of age he was fully competent to serve; his service after that date was of such a nature as to ■ effect an implied, or as it is more generally called a “constructive,” enlistment. See United States v Johnson, 6 USCMA 320, 20 CMR 36.
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Opinion of the Court
ROBERT E. Quinn, Chief Judge:
In a common trial with two other prisoners in the post stockade, the accused entered a plea of guilty and was convicted of willful disobedience of a lawful order by a Captain P. G. Kelly “to go to work.” No evidence was offered in mitigation and he was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for five years. The convening authority reduced the confinement to two years but otherwise affirmed the sentence. A board of review also affirmed the conviction. Now the accused contends the court-martial did not have jurisdiction over him.
The claim of lack of jurisdiction is based on the accused’s age. See United States v Blanton, 7 USCMA 664, 23 CMR 128. The accused alleges, and the Government does not deny, that he was born on April 1, 1939. On October 21, 1955, while still only sixteen years of age, he enlisted in the Army using his brother’s name and school record. His parents had no knowledge of the enlistment, but he wrote to his mother and told her of it. That December, while home on Christmas leave, he discussed the matter with his mother. He promised her he would talk to his company commander about “straightening out the matter and the possibility of getting a discharge from the Army.” Sometime in January or February 1956, he did consult his commander in regard to the matter. The substance of their discussion is in conflict.
According to the company commander, Captain Chase, he saw the accused during “commanders’ time.” The only “problem” he considered with the accused was the use by the accused of his brother’s name. He advised the accused he would have to obtain a birth certificate “stating his true name.” He did not tell the accused he would communicate with his parents with the view to obtaining the accused’s discharge from the Army. He said he did not remember any mention of the accused’s minority and he did not “believe” the matter was discussed. The accused contends the commander explained to him “about a Minority Discharge” and informed him that if his parents consented he could remain in the Army. Allegedly, he told Captain Chase that “if the records could not be corrected or straightened out then I wanted to get out of the Army.”
Shortly after the meeting with his commander, the accused received from his mother an application for a birth certificate. He took it to his company commander and signed it before him; the Captain signed as a witness. The accused left the signed application with the Captain. About a month later his mother wrote to him to advise that the application had been returned to her because his signature had not been notarized. The accused did not say anything about this matter to his commander. On May 26th or 27th, almost two months after he had turned seventeen, the accused went home on a three-day pass. He missed his return ride to camp so he went back home. According to the record of previous con[687]*687victions he was an unauthorized absentee from May 31 to June 24. He was arrested by the sheriff and turned over to the military. He was tried by a special court-martial and sentenced to partial forfeitures and confinement at hard labor for three months. On October 27, he was released and transferred from Fort Knox, Kentucky, to Fort Meade, Maryland.
On November 4, the accused again went absent without leave. He contends that the offense “was directly attributed to the fact” that no one had made “any efforts to get me out of the Army on a Minority Discharge.” He went home he says “for the sole purpose of getting my birth certificate.” At an unspecified date, he and his father allegedly went to Nashville and obtained the certificate. On January 22, 1957, two and one-half months after his initial unauthorized absence, he was apprehended again by civilian authorities and returned to military control.
Eight days after the accused’s apprehension, the accused’s mother wrote to the military authorities. She referred to the accused’s enlistment at the age of sixteen and said that the accused “still seems just a kid.” She hoped that she could “have him home like he should be.” The letter was addressed to Fort Meade. It was forwarded from there to Fort McPherson, Georgia, to which the accused had been transferred.
In the meantime, the accused was tried on February 13 by a special court-martial for his unauthorized absence and sentenced to partial forfeitures and confinement at hard labor for six months. The next day he committed the present offense. On March 1, the Personnel Officer at Fort McPherson wrote to the accused’s mother referring to her letter of January 30th “concerning a Minority Discharge.” He told her the accused had been interviewed regarding his enlistment and “to further process . . . [him] for a possible Minority Discharge it will be necessary” to obtain a record of birth of the accused’s brother and an affidavit from her regarding the “present status” of the two boys. On March 8, 1957, Mrs. Overton wrote to the Personnel Officer giving him the information he desired, together with other details of identification of her sons. On March 14, she again wrote to the Personnel Officer. In her letter she included a birth certificate from her son Reece. She pointed out that she had “been at this since early last summer” and she would be “very thankful” if he could “help any way you can.” She also asked whether she had to see a lawyer and requested that if she had to do “anything else or any different” would he “please let . . . [her] no [sic].”
On April 1, the accused came on for trial on the instant charge and pleaded guilty. Apparently, in response to a request from appellate defense counsel, Mrs. Overton has submitted a letter dated August 21, 1957. She attempts to review the matter “from the start” but the details are scant. She says that when the accused came home on leave she asked him “how he got into the Army”; he said that “he just joined.” After he “moved” to Fort Knox he came in on a week-end and she “begged him to tell” her about it. She talked to him “a good deal” about it. Then she heard from Captain Chase and the accused. She went to the draft board and talked to a man there. He told her to “just . . . write them myself”; there was “nothing to it.” She went to the recruiting office and someone there gave her the same advice. “Just this summer [1957] when he [the accused] was sent to Penn”1 she went back to the draft board and was advised by a woman there that the matter should have been “fixed . . . up” earlier. She filled out some papers. The letters ends as follows: “I sure would be thankful to you, if you could help my son an[d] get his name straightened out.”
Under present law a person under the age of seventeen years is incapable of entering into the enlistment contract. If enlistment is effected, the enlistment is void and the enlistee is not [688]*688subject to trial by court-martial under the Uniform Code of Military Justice. United States v Blanton, supra. On that much the parties are in full agreement. They disagree, however, on the nature and the legal consequences of the evidence after the accused attained his seventeenth birthday. The Government contends that when the accused became seventeen years of age he was fully competent to serve; his service after that date was of such a nature as to ■ effect an implied, or as it is more generally called a “constructive,” enlistment. See United States v Johnson, 6 USCMA 320, 20 CMR 36. From that time on, the Government’s argument continues, the enlistment was merely a voidable one which still subjects the accused to prosecution for an offense committed before the contract is actually terminated. In an opposite vein, appellate defense counsel maintain the evidence demonstrates the accused did not consent to a “constructive” enlistment, but was merely awaiting administrative disposition of his case. They further contend that the request of Mrs. Over-ton for release of the accused at a time when the accused had not yet committed an offense terminated military jurisdiction over him. '
At the time of accused’s enlistment, a male over the age of seventeen had legal capacity to serve in the Army. If he was between the ages of seventeen and eighteen, he was required to have the written consent of his parents or guardian. Act of June 28, 1947, 61 Stat 191, 10 USC § 628 (repealed and re-enacted in August 1956 as 10 USC § 3256). But an enlistment without such written consent is not void. Under the statutes, a nonconsent-ing parent can apply for the enlistee’s discharge, but the enlistee himself has no right or privilege to terminate his service. As far as he is concerned, his military status is not subject to his personal desire or wish. As the United States Supreme Court pointed out, the right to apply for discharge because of non-consent “is for the benefit of the parent or guardian . . . but it gives no privilege to the minor.” Morrissey v Perry, 137 US 157, 34 L ed 644, 11 S Ct 57.
These general principles bring us to the specific facts of this case. In January or February 1956, when he discussed his enlistment with Captain Chase, the accused was still only sixteen years of age and his enlistment was void. Had he then decided to leave the service, he would not be subject to trial by court-martial for any existing offense under the Uniform Code. United States v Blanton, supra. According to his affidavit, the accused attempted to stay on. Whatever his desires, however, his enlistment was absolutely void. If the accused changed his status after his seventeenth birthday, that fact has to be shown. As we said in United States v Garcia, 5 USCMA 88, 17 CMR 88, jurisdiction over the person is “not a matter lightly to be presumed, and must be shown clearly.” The Government has offered nothing to show such a change of status. On the other hand, the accused contends his continuation in the service was not absolute but contingent upon correction of the record, a condition which was not fulfilled at the time he committed the offense for which he was convicted. In addition, his mother acted affirmatively to terminate his status. Cf. Morrissey v Perry, 137 US 157, 34 L ed 644, 11 S Ct 57 (1890). From either standpoint, there is no satisfactory showing of an implied, or “constructive,” enlistment by the accused, or consent by the parent. We hold, therefore, that the court-martial lacked jurisdiction over the accused at the time of trial.
The decision of the board of review is reversed and the findings of guilty and the sentence are set aside. The charge is ordered dismissed.
Judge FeRguson concurs.