No. 29,937 | United States Court of Military Appeals | Jul 11, 1975
OPINION OF THE COURT
In addition to the uncontested evidence of record, an unopposed and unre-butted post-trial affidavit from appellant’s mother indicates that the appellant elected to enter the Army in 1967 rather than serve a 4-year term in a Utah reformatory following his juvenile conviction for rape, breaking and entering, and assault.
As in United States v Catlow, 23 USCMA 142, 145, 48 CMR 758, 761 (1974), appellant did not of his own volition seek out a recruiting officer to enlist. Rather, an Army recruiter contacted appellant while he was confined and advised him "to enlist in the Army or be
Because an agent of the Government acted improperly in securing appellant’s enlistment, fairness prevents the Government from now relying upon a constructive enlistment as a jurisdictional base. United States v Brown, 23 USCMA 162, 165, 48 CMR 778, 781 (1974). Additionally, the absence of evidence that the juvenile charges against appellant were dismissed following his enlistment would preclude reliance upon a constructive enlistment. United States v Catlow, supra at 146, 48 CMR at 762.
.Government counsel maintain that a limited rehearing on the jurisdictional issue should be authorized. United States v Burke, 48 CMR 246 (ACMR 1974); cf. United States v DuBay, 17 USCMA 147" court="None" date_filed="1967-07-21" href="https://app.midpage.ai/document/united-states-v-dubay-8574116?utm_source=webapp" opinion_id="8574116">17 USCMA 147, 37 CMR 411 (1967). Unlike Burke, the void enlistment issue clearly was raised in the accused’s sworn testimony at trial. Thus, the Government had an affirmative obligation to establish jurisdiction over the accused. Runkle v United States, 122 U.S. 543" court="SCOTUS" date_filed="1887-05-27" href="https://app.midpage.ai/document/runkle-v-united-states-92009?utm_source=webapp" opinion_id="92009">122 US 543, 556 (1887); see United States v Singleton, 21 USCMA 432, 45 CMR 206 (1972). Neither at trial nor during the course of this appeal has the Government met that burden. The absence of controverting evidence on the jurisdictional question obviates the need for a limited rehearing.
The decision of the United States Army Court of Military Review is reversed. The findings of guilty and sentence are set aside, and the charges are ordered dismissed.