Can a Judge Order Someone to Join the Military or Go to Jail?

The military isn't obligated to accept someone under such conditions

Portrait of Soldier in Uniform
The decision to wave a criminal history is actually left to the branch of the armed service in which the accused decides to enlist. Tim Bieber / Getty Images

Many Vietnam and Korean War veterans have heard tales of fellow soldiers who were in the Army (or other branches of the military) as an alternative to prison. Stories abound of military members who were told by a judge, "join the military, or go to jail."

Can a Criminal Court Judge Order Someone to Enlist?

But can American courts really do that? Can a criminal court judge sentence a person to military service as an alternative to jail?

Can a prosecutor mandate someone to join the military as an alternative to criminal prosecution?

While a judge or prosecutor can do whatever they please (within the limits of the law for their jurisdiction), it doesn't mean the military branches are required to accept such people and, in general, they don't.

Here's how the separate branches address the issue:

  • Army: The Army's Recruiting Regulation, 601-210, paragraph 4-8b: states that  any "applicant who, as a condition for any civil conviction or adverse disposition or any other reason through a civil or criminal court, is ordered or subjected to a sentence that implies or imposes enlistment into the Armed Forces of the United States is not eligible for enlistment."
  • Air Force: The Air Force Recruiting Regulation, AETCI 36-2002, table 1-1, lines 7 and 8, makes an applicant ineligible for enlistment if they are "released from restraint, or civil suit, or charges on the condition of entering military service, if the restraint, civil suit, or criminal charges would be reinstated if the applicant does not enter military service."
  • Marines: The Marine Corps Recruiting Regulation, MCO P1100.72B, Chapter 3, Section 2, Part H, Paragraph 12 states: "Applicants may not enlist as an alternative to criminal prosecution, indictment, incarceration, parole, probation, or another punitive sentence. They are ineligible for enlistment until the original assigned sentence would have been completed."
  • Coast Guard: This branch's enlistment prohibition is contained in the Coast Guard Recruiting Manual, M1100.2D, Table 2-A, and simply states "An application may be denied when, based on articulable facts, it is determined that accession would not be in the best interest of the Coast Guard."

The Navy and Punitive Sentences

Interestingly, the Navy Recruiting Manual, COMNAVCRUITCOMINST 1130.8F, does not appear to contain specific provisions which would make such applicants ineligible for enlistment. But as a general protocol, the Navy will not accept applicants for service as an alternative to criminal prosecution or another punitive sentence.

Military Recruiter Participation in Criminal Proceedings

All of the military's recruiting regulations prohibit recruiters from becoming involved in criminal proceedings for any military applicant.

Under no circumstances may recruiting personnel to intervene or appear on behalf of prospective applicants pending civil action with court authorities. A Civil action is defined as awaiting trial, awaiting sentence, or on supervised conditional probation/parole. Waiver of this restriction is not authorized.

Here are some examples where a military recruiter could not intervene:

  • Recruiting personnel may not appear in court or before probation or parole authorities under any circumstances on behalf of any applicant
  •  Informal conversations with defense attorneys or probation or parole officers must be limited to explaining the military's recruitment policies.
  • Recruiting personnel may give no opinions or suggestions to enable an unqualified applicant to enlist. They must allow the normal course of civil action to occur without assistance