Legal Question in Military Law in Maryland

Constructive Waiver
Is there a timeframe that the military has to act to separate a sailor after finding out the sailor�s enlistment was fraudulent? I found the regulation on fraudulent enlistment, but nothing on how soon after finding out the command has to act to separate the person.

Here�s the scenario, For patriotic reasons, enlists with ADHD and depression problems, the Navy discovers these conditions, but keeps the person in service for 13 months after finding out about the conditions (the person has good appraisals, and no military or civilian offenses). The service member is then deployed into combat, psychologically melts down and is discharged 13 months later for fraudulent enlistment.

If the command fails to separate a service member in a timely manner is that a form of constructive waiver and if so, does that mean the command waives it�s right to later claim fraudulent enlistment? Thank you.

Asked on 1/19/06, 8:11 am

Philip D. Cave Military Law & Justice

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Re: Constructive Waiver

An interesting scenario.

Depends what you are trying to do at this point.

Answered on 1/19/06, 9:24 am

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